Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 2 contracts
Samples: Merger Agreement (Leap Wireless International Inc), Merger Agreement (At&t Inc.)
Appointment of Stockholders’ Representative. For purposes of (ia) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counselEach Selling Stockholder, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, irrevocably appoints Three Cities Research, Inc. (the Stockholders’ "Stockholders Representative") to serve as the representative of that Selling Stockholder with respect to all matters concerning the Selling Stockholders set forth in this Agreement or in any other agreements entered into by the Selling Stockholders in accordance with this Agreement. Any action taken by the Stockholders Representative accepts such appointmentwill bind each Selling Stockholder as fully as though it had been taken by the Selling Stockholder himself, authority herself or itself. If, for any reason, the Stockholders Representative named in this Paragraph becomes unable or unwilling to serve, the Selling Stockholders will promptly designate a successor Stockholders Representative, which or who will have all the powers of the Stockholders Representative described in this Paragraph and power. elsewhere in this Agreement.
(b) Without limiting the generality what is said in subparagraph (a), each of the foregoingSelling Stockholders, by executing this Agreement, irrevocably appoints the Stockholders’ Stockholders Representative shall have as the power agent, proxy and attorney in fact for that Selling Stockholder to, among other things, (i) deliver all documents and take all other actions which are required in order to take any of complete the following actions transactions contemplated by this Agreement, (ii) receive on behalf of that Selling Stockholder (for disbursement to that Selling Stockholder) any payments to which the holders Selling Stockholder is entitled under this Agreement, (iii) receive on behalf of that Selling Stockholder (for delivery to that Selling Stockholder) any document the Contingent Value Rights: Selling Stockholder is entitled to give and receive notices, communications and consents under this Agreement and (as it relates to the Contingent Value Rightsiv) execute and the CVR Agreement deliver on behalf of the holders of Contingent Value Rights; to negotiatethat Selling Stockholder any document which is required by this Agreement. When any payment is made, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 generaldocument is delivered, to do the Stockholders Representative as agent of a Selling Stockholder, that payment or document will be deemed to have been made or delivered to that Selling Stockholder. The agency and proxy contained in this subparagraph will be deemed coupled with an interest, and therefore to be irrevocable, and will, to the fullest extent permitted under applicable law, survive the death, incapacity, bankruptcy or dissolution of any Selling Stockholder.
(c) Whenever any payment due to the Selling Stockholders is made to the Stockholders Representative (including the Cash Portion of the Purchase Price and all things and payments with regard to take any and all action that the Stockholders’ Seller Subordinated Notes) or securities (including Buyer Common Stock or Warrants) are delivered to the Stockholders Representative, in its sole and absolute discretion, may consider necessary the payment or proper delivery to the Stockholders Representative will constitute payment or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited delivery by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect Buyer to the Selling Stockholders’ , and the Stockholders Representative necessary will be responsible for distributing the payment or the securities to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvalsindividual Selling Stockholders.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes The approval of this Agreement by the Company Stockholders as provided for in the GCL and the agreements executed by the Optionholders shall constitute approval of, and a proxy relating to, the following actions binding upon the Company Stockholders and the Optionholders (for the avoidance of doubt, all references to Company Stockholders in this Section 9.5 shall include Principal Stockholders):
(a) The irrevocable authorization, direction and appointment of Xxxx Xxxxxx (such person and any successor or successors being the “Stockholders’ Representative”) as sole and exclusive agent, attorney-in-fact and representative of the Company Stockholders and the Optionholders and each such Person’s heirs, representatives and successors, for the matters described in this Section 9.5. Subject to the limitations in Section 9.5(b), (i) negotiating the Stockholders’ Representative shall be authorized to act on behalf of the Company Stockholders and settling matters with respect the Optionholders and to the Contingent Value Rights and (ii) taking take any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection taken by the Company Stockholders and the Optionholders (A) under this Agreement, including, without limitation, under Section 3.6 (or any other provisions of this Agreement dealing with the foregoingdetermination or payment of Earn Out Payments), in each case under Section 3.7 or Article 9 as it relates to any Company Stockholder or Optionholder (or any other provisions of this Agreement dealing with claims made by or against any Company Stockholder or Optionholder or indemnification matters related thereto), and under Section 3.9 (or any other provision of this Agreement dealing with the determination or payment of Working Capital Adjustments), and (B) under the Escrow Agreement, and (ii) the Stockholders’ Representative shall be the only Party or Person entitled to assert the rights of the Company Stockholders and the Optionholders under this Agreement, including, without limitation, with respect to the extent permitted matters described in the preceding clause Section 9.5(a)(i)(A), and under the Escrow Agreement. The Stockholders’ Representative shall perform all of the obligations of the Company Stockholders and the Optionholders under this Agreement and the Escrow Agreement from and after the Effective Time. Parent and its Affiliates shall be entitled to rely on all statements, representations and decisions of the Stockholders’ Representative. Neither Parent nor any of its Affiliates shall have any Liability or obligation for any action or inaction by the CVR Agreement)Stockholders’ Representative.
(b) Notwithstanding anything to the contrary herein, (i) the Stockholders’ Representative is hereby appointednot authorized to, authorized and empowered to be the exclusive representativeshall not, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent accept on behalf of any Company Stockholder any Merger Consideration to which such Company Stockholder is entitled under this Agreement and (ii) the Stockholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of Parent now or hereinafter owned of record or beneficially by any Company Stockholder or the Optionholder unless the Stockholders’ Representative is expressly authorized to do so in a writing signed by such Person.
(c) Any actions, exercises of rights, power or authority and any decisions or determinations made by the Stockholders’ Representative shall be absolutely and irrevocably binding on each Company Stockholder and the Optionholders as agent if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s individual capacity, except for any action that conflicts with the holders limitation set forth in Section 9.5(b). The Stockholders’ Representative shall promptly, and in any event within five (5) Business Days, provide written notice to the Company Stockholders and the Optionholders of any action taken on their behalf by the Stockholders’ Representative pursuant to the authority delegated to the Stockholders’ Representative under this Section 9.5.
(d) The Stockholders’ Representative shall at all times act in his capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to be in the best interest of the Contingent Value Rights at Company Stockholders and the Optionholders. The Stockholders’ Representative shall not be liable to any time in connection withCompany Stockholder or Optionholder for any error of judgment, and that may or any action taken, suffered or omitted to be necessary or appropriate to accomplish the intent and implement the provisions of taken, under this Agreement (as it relates to or the Contingent Value Rights) and the CVR Escrow Agreement, except in the case of his gross negligence, bad faith or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him and shall not be liable for any action taken or omitted to facilitate be taken in good faith by him in accordance with the consummation advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement or the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Escrow Agreement, the Stockholders’ Representative accepts shall not be required to exercise any discretion or take any action.
(e) Each Company Stockholder and Optionholder severally shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such appointmentstockholder’s ratable share of any and all liabilities, authority losses, damages, claims, costs or expenses suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement or the Escrow Agreement (and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power be authorized and entitled to take pay any such liabilities, losses, damages, claims, costs or expenses out of the following actions proceeds of any Escrowed Property, Working Capital Adjustment payment or Earn Out Payments that it receives on behalf of the holders Company Stockholders and/or Optionholders), other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Stockholders’ Representative’s gross negligence, bad faith or willful misconduct.
(f) The Stockholders’ Representative may resign at any time by submitting a written resignation to Parent. In the event of the Contingent Value Rights: to give and receive noticesdeath, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf physical or mental incapacity or resignation of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the a successor Stockholders’ Representative shall be elected by a majority vote of the Company Stockholders, with each such holder (or his successor or assign) to take all actions with respect be given a vote equal to the number of Shares (on an as-converted-to-common-stock basis) held by such holder immediately prior to the Effective Time pursuant to a procedure to be mutually agreed upon among such holders. Such holders shall cause to be delivered to Parent prompt written notice of such election of a successor Stockholders’ Representative. Pending the election of a successor Stockholders’ Representative, such holder holding the largest number of such Shares (excluding the former Stockholders’ Representative) shall act as the interim Stockholders’ Representative. Each interim and successor Stockholders’ Representative necessary shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Stockholders’ Representative, and the term “Stockholders’ Representative” as used herein shall be deemed to permit the transactions contemplated hereby include any interim or successor Stockholders’ Representative. Any successor Stockholders’ Representative shall indicate in writing his acceptance of such appointment and his agreement to be consummated as promptly as practicable after bound by the date terms of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Samples: Merger Agreement (Ediets Com Inc)
Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to The Stockholders hereby appoint the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Stockholder Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) as, and the CVR Agreement (including engaging counselStockholder Representative hereby agrees to serve as, accountants or other advisors each Stockholder’s legal representative and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorneyAttorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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, Fact to do any and all things and to take any execute all documents and all action that the Stockholders’ Representativepapers, in its sole each Stockholder’s name, place and absolute discretionstead, may consider necessary or proper or convenient in any way such Stockholder could do if personally present, in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit Agreement and the transactions contemplated hereby hereby, including, without limitation, to be consummated as promptly as practicable after (i) amend, cancel or extend, or waive the date terms of this Agreement, the Voting Agreement or any other ancillary documents or agreements prepared in connection with this Agreement, (ii) provide the notices of dispute and adjustments to the consideration pursuant to Section 2.3(c), (iii) accept and deliver shares or cash in the amounts due to each Stockholder, on behalf of such Stockholders, (iv) act on behalf of each Stockholder with respect to claims (including the settlement thereof) made by an Indemnified Party (as defined in Section 9.1) for indemnification pursuant to Article IX and with respect to any actions to be taken by the Stockholders pursuant to the terms of the Voting Agreement, (v) accept, on behalf of each Stockholder, all notices required to be delivered to such Stockholder under this Agreement, and (vi) execute and deliver the Stock Pledge Agreement (as defined below) on behalf of each Stockholder. Each Stockholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Representative under this Agreement or the Voting Agreement. Each Stockholder shall be bound by all actions taken by the Stockholder Representative in his capacity thereof. Parent and obtaining all Regulatory ApprovalsSub shall be entitled to rely, as being binding upon each Stockholder, any document or other paper believed by it to be genuine and correct and to have been signed or sent by the Stockholder Representative, and neither Parent nor Sub shall be liable to any Stockholder for any action taken or omitted to be taken by it in such reliance.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes By approving this Agreement and the consummation of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate transactions contemplated hereby, and/or participating in the judgment of Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Stockholder shall be deemed to have irrevocably approved the appointment and designation of, and hereby appoints and designates the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) its true and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the lawful exclusive representative, agent and proxy, attorney-in-fact of the holders of Contingent Value Rightsfact, and agent with full power of substitution, substitution to make do any and all decisions things and determinations execute any and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that documents which may be necessary necessary, convenient, or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder and the Escrow Agreement, including (as it relates i) to take all action necessary to consummate the Contingent Value Rights) and thereby. By executing transactions contemplated by this Agreement, or the Stockholders’ Representative accepts such appointmentdefense and/or settlement of any claims for which the Stockholders may be required to indemnify Parent or any other Indemnitee pursuant to Section 9, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: (ii) to give and receive notices, all notices and communications and consents under pursuant to this Agreement (as it relates to the Contingent Value Rights) and the CVR Escrow Agreement and accepting service of process, (iii) giving or agreeing to, on behalf of all the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 Stockholders any and all things consents, waivers and to take any and all action that amendments deemed by the Stockholders’ Representative, in its sole reasonable and absolute good faith discretion, may consider to be necessary or proper appropriate under this Agreement and the Escrow Agreement and the execution or convenient delivery of any documents that may be necessary or appropriate in connection therewith, (iv) receiving payments or distributions under or pursuant to this Agreement and the Escrow Agreement and making disbursements thereof to the Stockholders, as contemplated by this Agreement and the Escrow Agreement, and (v) with respect to any indemnification claims and all other matters arising under this Agreement and the Escrow Agreement, (A) disputing or refraining from disputing, on behalf of each Stockholder relative to carry out any amounts to be received by the activities described in Stockholders under this Section 6.16Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement or the Escrow Agreement, (B) negotiating and compromising, on behalf of each Stockholder any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or the Escrow Agreement, and (C) executing, on behalf of each Stockholder any settlement agreement, release or other document with respect to such dispute or remedy, except in each case except as limited by with respect to a dispute between any Stockholder on the CVR Agreement. The Company shall cause one hand and the Stockholders’ Representative on the other hand, provided that, in each case, the Stockholders’ Representative shall not take any action adverse to take all actions any Stockholder unless such action is also taken proportionately with respect to the others.
(a) All decisions and actions by the Stockholders’ Representative, including without limitation (i) any agreement between the Stockholders’ Representative necessary and Parent relating to permit the transactions contemplated hereby defense or settlement of any claims for which the Indemnitors may be required to indemnify Parent pursuant to Section 9 and (ii) any agreement between the Stockholders’ Representative and Parent relating to the determination of Parent’s payment obligations under Section 1.9 or any other matter relating to Section 1, shall be consummated binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) The Stockholders’ Representative shall not have any liability to any Stockholder for any act done or omitted pursuant to this Agreement as promptly the Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense (collectively, the “Representative Expenses”) incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties under this Agreement or the Escrow Agreement Such Representative Expenses may be recovered first, from the Stockholders’ Representative Reserve Fund, second, from any distribution of the Escrow Shares otherwise distributable to the Stockholders, and third, directly from the Stockholders.
(c) Upon the resignation, death, retirement, or disability of the Stockholders’ Representative or in the event that the person or entity serving as practicable after the date Stockholders’ Representative files for bankruptcy protection or otherwise becomes unable to serve as a representative of the Stockholders, the Stockholders who held a majority of the Company Capital Stock (measured as of immediately prior to the Effective Time without giving effect to the Merger or the consequences of this Agreement) (the “Required Majority”), including making acting severally and obtaining not jointly and severally, shall within 30 days after such resignation, death, retirement or disability, appoint a successor Stockholders’ Representative to fill such vacancy and provide written notice of such successor Stockholders’ Representative nominee to Parent; provided, however, that in the event a successor Stockholders’ representative is not so appointed within such 30 day period, then the Required Majority shall act as the Stockholders’ Representative. Such nominee successor shall become the Stockholders’ Representative for all Regulatory Approvalspurposes under this Agreement and the Escrow Agreement upon such successor Stockholders’ Representative nominee’s written agreement to be bound by the terms of this Agreement and any other Ancillary Agreement to which the predecessor Stockholders’ Representative was bound as the Stockholders’ Representative; and provided, further, that until such nominee becomes the Stockholders’ Representative, Parent shall be entitled to rely upon the decisions, actions, consents and instructions of the prior Stockholders’ Representative.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment Each of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with Stockholders signing this Agreement hereby appoints Xxxxxx X. Xxxx (the “STOCKHOLDERS’ REPRESENTATIVE”) with full power and authority to act as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of each such Stockholder in connection with fulfilling the holders obligations of Contingent Value Rightssuch Stockholders under this Agreement and to perform all acts required hereunder, with full power of substitutionincluding, to make but not limited to, (i) making all decisions relating to the resolution and determinations settlement of any disputes under this Agreement, whether relating to such Stockholders’ indemnification obligations hereunder or otherwise, and, in connection therewith, without limitation, receiving and to act (or not act) delivering all notices, giving all approvals and executewaivers, deliver signing and receive entering into all agreements, documentsreleases, certificates and instruments and consent on behalf exercising all rights of each such Stockholder in regard to his rights and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing obligations under this Agreement, (ii) directing Buyer to pay funds otherwise payable pursuant to the Notes delivered under SECTION 2.1, paragraph (b) to the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the to enable Stockholders’ Representative shall to have funds available to pay expenses incurred in the power to take any performance of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreementhis duties hereunder; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, (iii) taking in general, to do any and all things and to take any and general all action that which the Stockholders’ Representative, in its his sole and absolute discretion, may consider considers necessary or proper or convenient in connection with or to carry out the activities described in transactions contemplated herein. Each of the Stockholders signing this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect Agreement acknowledges and agrees that any payment made to the Stockholders’ Representative necessary pursuant to permit clause (ii) of the transactions contemplated preceding sentence shall be deemed payment of such amount to the Stockholder for purposes of discharging Buyer’s obligation to such Stockholder. If the Stockholders’ Representative shall die, become totally incapacitated, shall otherwise be unable to perform his or her duties or shall resign from such position, the Stockholders holding a majority of the Company’s stock on the date hereof shall appoint the new Stockholders’ Representative to fill such vacancy (“ALTERNATE STOCKHOLDERS’ REPRESENTATIVE”) and shall notify Buyer concurrent with making such appointment. All decisions and actions of the Stockholders’ Representative or the Alternate Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent from, protest or otherwise contest the same. The Buyer shall be permitted to rely upon any written instrument or document executed by the Stockholders’ Representative or Alternative Stockholders’ Representative. Buyer agrees and acknowledges that the Stockholders’ Representative, the Alternate Stockholders’ Representative and their respective affiliates shall have no liability to Buyer for any act or omission in their capacity as the Stockholders’ Representative and the Alternate Stockholders’ Representative. Each Stockholder agrees and acknowledges that the Stockholders’ Representative, the Alternate Stockholders’ Representative and their respective affiliates shall have no liability to such Stockholder for any act or omission in their capacity as the Stockholders’ Representative and the Alternate Stockholders’ Representative except acts or omissions of the Stockholders’ Representative or the Alternate Stockholders’ Representative which constitute gross negligence, fraud or willful violation of law. To the extent Stockholders’ Representative requires funds to fulfill his obligations under this SECTION 7.16 in addition to funds derived from Buyer’s payment obligations under the Notes, each Stockholder severally covenants to reimburse the Stockholders’ Representative or the Alternate Stockholders’ Representative on demand for such Stockholder’s pro rata share (determined in proportion to the percentage of Company shares owned as shown on Schedule 3.3) of all expenses incurred by the Stockholders’ Representative or the Alternate Stockholders’ Representative in the performance of his duties hereunder. The Stockholders’ Representative, the Alternate Stockholders’ Representative and their affiliates shall be and hereby are indemnified and held harmless by each Stockholder from and against any and all claims, demands, liabilities, costs, expenses, damages, losses, suits, proceedings and actions, whether judicial, administrative, investigative or otherwise, of any nature whatsoever known or unknown, liquidated or unliquidated, that may be asserted against the Stockholders’ Representative, the Alternate Stockholders’ Representative or any of their affiliates or in which any of such persons may become involved, as a party or otherwise, arising out of the performance of the duties set forth in this SECTION 7.16; provided, that, the maximum liability of any Stockholder pursuant to this SECTION 7.16 to the Stockholders’ Representative shall be limited to and not exceed the portion of the Purchase Price payable to such Stockholder less the amount paid to Buyer to fulfill the indemnification obligation of such Stockholder pursuant to this Agreement (it being understood that nothing in this SECTION 7.16 shall affect or diminish any Stockholder’s indemnification obligation to Buyer pursuant to this Agreement), provided further, that, neither the Stockholders’ Representatives, the Alternate Stockholders’ Representative nor any of their affiliates shall be entitled to indemnification hereunder if it shall have been determined by a court of competent jurisdiction or as part of a settlement that such person acted so as to be consummated as promptly as practicable after the date liable for gross negligence, fraud or willful violation of this Agreement, including making and obtaining all Regulatory Approvalslaw.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes (a) The Stockholders hereby irrevocably appoint Xxxxx Xxxxxx as their attorney-in-fact and representative (the “Stockholders’ Representative”), with full power and authority to take, for and on behalf of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all of the Stockholders, all actions necessary, permitted or advisable to effectuate and consummate the Merger and any and all other transactions contemplated by this Agreement and the Transaction Documents (as hereinafter defined) (including the Escrow Agreement), including to undertake the defense or settlement of any Claims for which any Stockholder may be required to indemnify the GlobalSCAPE Indemnity Group (as hereinafter defined), or be indemnified by GlobalSCAPE hereunder, and to take all such other actions provided in this Agreement or in any Transaction Document to be taken by the Stockholders’ Representative (and any other actions reasonably related or ancillary thereto), including the power to execute and deliver the Escrow Agreement and such other documents as may be necessary or appropriate for the foregoing purposes. By his execution of this Agreement, Xxxxx Xxxxxx hereby accepts such appointment and agrees to act as the Stockholders’ Representative hereunder. Simultaneously with the execution of this Agreement, the Stockholders and the Stockholders’ Representative are entering into a Stockholders’ Representative Agreement (the “Stockholders’ Representative Agreement”). The provisions of this Section 1.17 shall apply in addition to and not in lieu of the judgment provisions of the Stockholders’ Representative on behalf Agreement.
(b) Without limiting the provisions of Section 1.17(a), the Stockholders hereby irrevocably authorize the Stockholders’ Representative to be the recipient of any notice required to be given or made by GlobalSCAPE to any of the holders of Contingent Value Rights Stockholders in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counselTransaction Documents, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted such notice received by the CVR Agreement), the Stockholders’ Representative is hereby appointedshall be deemed for all purposes of this Agreement and the Transaction Documents to have been received by all of the Stockholders.
(c) All decisions, authorized actions and empowered agreements made or taken (or to be taken) by the exclusive representativeStockholders’ Representative in connection with this Agreement and the Transaction Documents, agent including any agreement between the Stockholders’ Representative and attorney-in-fact GlobalSCAPE relating to the Net Asset Schedule or any defense or settlement of any Claims for which any of the holders of Contingent Value Rights, with full power of substitution, Stockholders may be required to make all decisions and determinations and indemnify the GlobalSCAPE Indemnity Group hereunder or GlobalSCAPE may be required to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders indemnify any of the Contingent Value Rights at any time in connection withStockholders Indemnity Group hereunder, shall be binding upon all of the Stockholders, and that may be necessary no Stockholders shall have the right to object, dissent, protest or appropriate otherwise contest the same.
(d) Notwithstanding anything to accomplish the intent contrary herein contained, and implement without limiting the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Stockholders’ Representative Agreement, the Stockholders’ Representative accepts such appointmentshall not be liable to any Stockholder, authority Parent, Merger Sub, the Company and power. Without limiting the generality of the foregoingSurviving Corporation or to their respective Affiliates, or to any other Person, with respect to any action taken or omitted to be taken by the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under in connection with this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement Transaction Documents or the transactions contemplated hereby and thereby, unless such action or omission results from or arises out of fraud or willful misconduct on behalf the part of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in .
(e) The provisions of this Section 6.161.17 shall be binding upon the heirs, in executors, administrators, personal representatives, successors and assigns of each case except as limited by the CVR Agreement. The Company shall cause of the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Samples: Merger Agreement (Globalscape Inc)
Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment Each of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with Stockholders signing this Agreement hereby appoints Thomxx X. Xxxx (xxe "STOCKHOLDERS' REPRESENTATIVE") with full power and authority to act as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of each such Stockholder in connection with fulfilling the holders obligations of Contingent Value Rightssuch Stockholders under this Agreement and to perform all acts required hereunder, with full power of substitutionincluding, to make but not limited to, (i) making all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates relating to the Contingent Value Rights) resolution and the CVR Agreement, and to facilitate the consummation settlement of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing any disputes under this Agreement, the whether relating to such Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders ' indemnification obligations hereunder or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writingsotherwise, and, in generalconnection therewith, without limitation, receiving and delivering all notices, giving all approvals and waivers, signing and entering into all agreements, releases, certificates and instruments and exercising all rights of each such Stockholder in regard to do any his rights and all things obligations under this Agreement, (ii) directing Buyer to pay funds otherwise payable pursuant to the Notes delivered under SECTION 2.1, paragraph (b) to the Stockholders' Representative to enable Stockholders' Representative to have funds available to pay expenses incurred in the performance of his duties hereunder; and to take any and (iii) taking in general all action that which the Stockholders’ ' Representative, in its his sole and absolute discretion, may consider considers necessary or proper or convenient in connection with or to carry out the activities described in transactions contemplated herein. Each of the Stockholders signing this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect Agreement acknowledges and agrees that any payment made to the Stockholders’ ' Representative necessary pursuant to permit clause (ii) of the transactions contemplated preceding sentence shall be deemed payment of such amount to the Stockholder for purposes of discharging Buyer's obligation to such Stockholder. If the Stockholders' Representative shall die, become totally incapacitated, shall otherwise be unable to perform his or her duties or shall resign from such position, the Stockholders holding a majority of the Company's stock on the date hereof shall appoint the new Stockholders' Representative to fill such vacancy ("ALTERNATE STOCKHOLDERS' REPRESENTATIVE") and shall notify Buyer concurrent with making such appointment. All decisions and actions of the Stockholders' Representative or the Alternate Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent from, protest or otherwise contest the same. The Buyer shall be permitted to rely upon any written instrument or document executed by the Stockholders' Representative or Alternative Stockholders' Representative. Buyer agrees and acknowledges that the Stockholders' Representative, the Alternate Stockholders' Representative and their respective affiliates shall have no liability to Buyer for any act or omission in their capacity as the Stockholders' Representative and the Alternate Stockholders' Representative. Each Stockholder agrees and acknowledges that the Stockholders' Representative, the Alternate Stockholders' Representative and their respective affiliates shall have no liability to such Stockholder for any act or omission in their capacity as the Stockholders' Representative and the Alternate Stockholders' Representative except acts or omissions of the Stockholders' Representative or the Alternate Stockholders' Representative which constitute gross negligence, fraud or willful violation of law. To the extent Stockholders' Representative requires funds to fulfill his obligations under this SECTION 7.16 in addition to funds derived from Buyer's payment obligations under the Notes, each Stockholder severally covenants to reimburse the Stockholders' Representative or the Alternate Stockholders' Representative on demand for such Stockholder's pro rata share (determined in proportion to the percentage of Company shares owned as shown on Schedule 3.3) of all expenses incurred by the Stockholders' Representative or the Alternate 39 45 Stockholders' Representative in the performance of his duties hereunder. The Stockholders' Representative, the Alternate Stockholders' Representative and their affiliates shall be and hereby are indemnified and held harmless by each Stockholder from and against any and all claims, demands, liabilities, costs, expenses, damages, losses, suits, proceedings and actions, whether judicial, administrative, investigative or otherwise, of any nature whatsoever known or unknown, liquidated or unliquidated, that may be asserted against the Stockholders' Representative, the Alternate Stockholders' Representative or any of their affiliates or in which any of such persons may become involved, as a party or otherwise, arising out of the performance of the duties set forth in this SECTION 7.16; provided, that, the maximum liability of any Stockholder pursuant to this SECTION 7.16 to the Stockholders' Representative shall be limited to and not exceed the portion of the Purchase Price payable to such Stockholder less the amount paid to Buyer to fulfill the indemnification obligation of such Stockholder pursuant to this Agreement (it being understood that nothing in this SECTION 7.16 shall affect or diminish any Stockholder's indemnification obligation to Buyer pursuant to this Agreement), provided further, that, neither the Stockholders' Representatives, the Alternate Stockholders' Representative nor any of their affiliates shall be entitled to indemnification hereunder if it shall have been determined by a court of competent jurisdiction or as part of a settlement that such person acted so as to be consummated as promptly as practicable after the date liable for gross negligence, fraud or willful violation of this Agreement, including making and obtaining all Regulatory Approvalslaw.
Appears in 1 contract
Appointment of Stockholders’ Representative. For Subject to the terms and conditions set forth in this Agreement, for purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights (including, but not limited to, effectuating the (x) sale of the Montreal Properties or the Montreal Interests, as applicable, and (y) satisfaction and discharge of the Montreal Guaranty), and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) ), the Montreal Escrow Agreement and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) ), the Montreal Escrow Agreement and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby and thereby (in each instance, as it relates to the Contingent Value Rights) and thereby). By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, subject to the terms and conditions set forth in this Agreement, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: (i) to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; (ii) to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and (iii) to 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, ; and (iv) to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.165.13, in each case except as limited by the CVR Agreement. The Company shall cause Prior to the Effective Time, the Stockholders’ Representative to shall take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby Transactions to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes The Significant Stockholders hereby appoint Xxxxxxx X. Xxxxxxx (the “Stockholders’ Representative”) the attorney-in-fact of (i) negotiating the Significant Stockholders, with full power and settling matters with respect authority, acting in the name of and of and on behalf of the Significant Stockholders to execute the Contingent Value Rights Paying Agent Agreement or to amend or waive any provision, on behalf of the Significant Stockholders, of this Agreement, the Merger Agreement and (ii) taking the other Transaction Documents and to do all other things and to take all other action under or related to this Agreement, the Merger Agreement or any and all actions of the other Transaction Documents which, in the Stockholders’ Representative’s discretion, may consider necessary or appropriate proper to effectuate the transactions contemplated by this Agreement, the Merger Agreement and related documents and to resolve any dispute, on behalf of the Significant Stockholders, with Parent, the Company or the Surviving Corporation, as appropriate, over any aspect of this Agreement, the Merger Agreement or any of the other Transaction Documents and on behalf of the Significant Stockholders to enter into any agreement to effectuate any of the foregoing which shall have the effect of binding the Significant Stockholders as if the Significant Stockholders had personally entered into such an agreement. Each Significant Stockholder acknowledges that Xxxxxxx X. Xxxxxxx may serve as a director, officer and employee of Parent, Merger Sub and/or the Company during the term of his activity as Stockholders’ Representative. The Significant Stockholders agree and acknowledge that the Stockholders’ Representative shall also have the authority set forth in Section 9.5 of the judgment Merger Agreement, and the provisions of Section 9.5 of the Merger Agreement are incorporated herein by reference. Parent, Merger Sub, the Company and the Surviving Corporation shall be able to rely conclusively on the actions, instructions and decisions of the Stockholders’ Representative on behalf of the holders Significant Stockholders, including any actions, instructions and decisions as to the defense or settlement of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) any claims for indemnification by Parent, the Company and the CVR Agreement (including engaging counsel, accountants Surviving Corporation pursuant to Section 7 hereof or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under other matters hereunder or in any of the CVR Agreement; other Transaction Documents. None of Parent, the Company and the Surviving Corporation shall be liable to makethe Significant Stockholders for any Losses or other damages resulting from Parent’s, executethe Company’s or the Surviving Corporation’s reliance on the actions, acknowledge instructions 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 and all things and to take any and all action that decisions of the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes By the execution and delivery of (i) negotiating this Agreement, each Selling Stockholder hereby irrevocably constitutes and settling matters with respect to appoints Mary X. Xxxxx xx the Contingent Value Rights true and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, lawful agent and attorney-in-fact (the "Stockholders' Representative") of the holders of Contingent Value Rights, such Selling Stockholder with full power of substitutionsubstitution to act in the name, place and stead of such Selling Stockholder with respect to the following:
(a) During the period between the date of this Agreement and the Closing Date, the Stockholders' Representative shall have the following powers:
(i) the power to execute and deliver all applications and associated exhibits, forms, affidavits, and other documents required to be signed by the Selling Stockholders and filed with any federal, state or local administrative agency from whom Consents must be obtained; and
(ii) the power to amend this Agreement and the Deposit Escrow Agreement; provided, however, that no such amendment shall be binding upon a Selling Stockholder if the effect thereof is to reduce the Purchase Price or any other sums due and owing to such Selling Stockholder hereunder by an amount that cumulatively exceeds $100,000.00, to make all decisions or expand any warranties and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent representations on behalf of and as agent for such Selling Stockholder, to limit the holders Selling Stockholder's right to indemnification under Section 11.1 above, or to materially delay (by the express terms of such amendment) the contemplated Closing.
(b) After the Closing, the Stockholders' Representative shall have the following powers:
(i) the power to amend the Indemnification Escrow Agreement (other than any amendment that would increase the amount of the Contingent Value Rights at any time Holdback Amount);
(ii) the power to deal exclusively with the Buyer with regard to all matters involving the indemnification of Selling Stockholders as set forth in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions Section 11.2 of this Agreement Agreement;
(iii) the power to deal exclusively with the Buyer and the Escrow Agent, with regard to all matters involving indemnification of the Buyer as it relates set forth in Section 11.1 of this Agreement; subject, however, to the Contingent Value Rightslimitation on Capped Buyer Indemnified Costs evidenced by the Holdback Amount;
(iv) and the CVR power to negotiate with the Buyer with regard to any indemnification sought by the Buyer pursuant to the terms of Section 3.1(o) of this Agreement; and
(v) to the extent that collusive fraud is alleged against all Selling Stockholders, and the power to facilitate deal with the consummation Buyer with regard to any indemnification sought by the Buyer pursuant to Section 11.8 of this Agreement. In the event the Buyer seeks indemnification against a Selling Stockholder for fraud committed solely by such Selling Stockholder pursuant to Section 11.8, or in the event the Buyer seeks indemnification solely against a Selling Stockholder for breach of the transactions contemplated hereby (as it relates to the Contingent Value Rights) representations and thereby. By executing warranties of such Selling Stockholder under Section 3.2 of this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Stockholder's Representative shall have the no authority or power to take any of the following actions act on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writingsSelling Stockholder, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Samples: Stock Purchase Agreement (Capstar Broadcasting Partners Inc)
Appointment of Stockholders’ Representative. For purposes In the event the Company Stockholder Approval is obtained, effective upon the Company Stockholder Approval and without any further action by the Stockholders, the Company and, by their approval and adoption of this Agreement, the Stockholders hereby appoint MC Venture Partners V, L.P. as agent and the attorney-in-fact for each Stockholder, with full authority to act, for and on behalf of any or all of the Stockholders (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate full power of substitution in the judgment premises), in connection with such matters as are reasonably necessary for the consummation of the Stockholders’ Representative transactions contemplated hereby, including, without limitation, (a) to receive notice of, to defend and to compromise on their behalf with Parent any claims asserted under this Agreement or the Escrow Agreement, (b) to execute and deliver on behalf of the holders of Contingent Value Rights Stockholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement (as it relates including notices and joint instructions to Contingent Value Rightsthe Escrow Agent under the Escrow Agreement), (c) and the CVR Agreement (including engaging to engage counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given representatives in connection with the foregoingforegoing matters and (d) to take such further actions, in each case including coordinating and administering pre-Closing and post-Closing matters related to the extent permitted rights and obligations of the Stockholders under this Agreement or the Escrow Agreement, to send and receive notices on behalf of the Stockholders under this Agreement and to provide any consents on behalf of the Stockholders as are authorized in or contemplated by this Agreement or the CVR Escrow Agreement (the above named representative, as well as any subsequent representative of the Stockholders as the Stockholders who hold at least a majority of the Stockholders’ interest in the Escrow Fund may appoint from time to time to replace MC Venture Partners V, L.P., being referred to herein as the “Stockholders’ Representative”). The Stockholders’ Representative shall have full power and authority to represent all of the Stockholders and their successors with respect to all matters arising under this Agreement), all actions taken by the Stockholders’ Representative is hereby appointedhereunder and thereunder shall be binding upon all of the Stockholders and their successors as if expressly confirmed and ratified in writing by each of them, authorized and empowered no Stockholder shall have the right to object, dissent, protest or otherwise contest any such actions. The Stockholders’ Representative shall not be liable to any Stockholder, Parent, the Surviving Corporation or their respective Affiliates or any other Person, and (on a several basis) each Stockholder shall indemnify and hold the Stockholders’ Representative harmless from, any loss, liability or expense incurred by the Stockholders’ Representative, with respect to any action taken or omitted to be taken by the exclusive representativeStockholders’ Representative in his role as Stockholders’ Representative under or in connection with this Agreement (all of which actions and omissions shall be legally binding upon each Stockholder), agent unless such action or omission constitutes fraud, gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Representative. Parent, Merger Co. and the Surviving Corporation shall be entitled to rely on such appointment and treat such Stockholders’ Representative as the duly appointed attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make each Stockholder for all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions purposes of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing Each Stockholder who executes this Agreement, the Stockholders’ Representative accepts by such appointmentexecution and without any further action, authority confirms such appointment and powerauthority. Without limiting the generality All fees and expenses of the foregoing, the Stockholders’ Representative shall have be paid by the power Principal Stockholders. Section 8.21. Section 16. Assuming that the Company delivers to take any Parent the Section 16 Information in a timely fashion, the Board of Directors of Parent, or a committee of two or more Non-Employee Directors (as such term is defined for purposes of Rule 16b-3 under the Exchange Act) of the following actions on behalf Board of Directors of Parent, shall adopt resolutions prior to the consummation of the holders Merger providing that the receipt by the Company Insiders of Parent Common Shares in exchange for capital stock of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates Company pursuant to the Contingent Value Rightstransactions contemplated hereby, and to the extent such securities are listed in the Section 16 Information, are intended to be exempt from liability pursuant to Section 16(b) and under the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and Exchange Act. Such resolutions shall comply with Law and other orders or awards the conditions of third-party intermediaries with respect to any disputes arising Rule 16b-3 under the CVR Agreement; and to make, execute, acknowledge and deliver all Exchange Act for purposes of establishing such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, exemption from Section 16(b) liability and, in generalaccordance with such conditions, to do any and all things and to take any and all action that the Stockholders’ Representativeshall specify, in its sole and absolute discretionwithout limitation, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.the
Appears in 1 contract
Samples: Merger Agreement (Itc Deltacom Inc)
Appointment of Stockholders’ Representative. For purposes of (ia) negotiating and settling matters with respect Each Stockholder hereby irrevocably agrees to the Contingent Value Rights and appointment of Baupost Capital, L.L.C. (ii) taking any and all actions necessary or appropriate in the judgment of the “Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (Representative”) as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, its agent and attorney-in-fact for purposes of taking action with respect to Article VIII of the holders of Contingent Value RightsMerger Agreement, with full power of substitution, to make all decisions the Escrow Agreement and determinations and to act (or not actSchedule 1.1(a) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) Merger Agreement and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates consents to the Contingent Value Rights) and thereby. By executing this Agreement, taking by the Stockholders’ Representative accepts of any and all actions and the making of any decisions required or permitted to be taken by it under the Merger Agreement, the Escrow Agreement and Schedule 1.1(a) to the Merger Agreement and to exercise such appointmentrights, power and authority, as are incidental thereto (including the right, power and authority to retain attorneys, accountants and powerother advisors to assist it in the performance of its duties thereunder). Without limiting the generality of the foregoing, Each Stockholder agrees that the Stockholders’ Representative shall have the ability and power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge execute and deliver all such other agreementsinstruments, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters certificates and other writingsdocuments of every kind incident to the foregoing and with all right, and, in general, power and authority to do any and all things and to take any and all action that the Stockholders’ Representative, in act on its sole and absolute discretion, may consider necessary or proper or convenient behalf in connection therewith. Parent shall be entitled to deal exclusively with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative on all matters relating to take Article VIII of the Merger Agreement, the Escrow Agreement and Schedule 1.1(a) to the Merger Agreement. If the Stockholders’ Representative shall resign its position or be unable to fulfill its responsibilities as agent of the Company stockholders, then Phoenix Rental Partners, LLC shall, within ten days after a request by Parent, appoint a successor representative. Any such successor shall become the “Stockholders’ Representative” for purposes of Article VIII of the Merger Agreement, the Escrow Agreement and Schedule 1.1(a) to the Merger Agreement. If for any reason there is no Stockholders’ Representative at any time, all actions with respect references herein to the Stockholders’ Representative necessary shall be deemed to permit refer to Baupost Capital, L.L.C.
(b) Each Stockholder also agrees with the transactions contemplated hereby to be consummated as promptly as practicable after provisions in Article IX of the date Merger Agreement in respect of this Agreement, including making and obtaining all Regulatory Approvalsthe Stockholders’ Representative.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes of (ia) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment Each of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (Stockholders hereby appoints Xxxx Xxxxxxx as it relates to Contingent Value Rights) its exclusive representative and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rightswith full power and authority to act, with including full power of substitution, in his or its name and on his or its behalf with respect to make all decisions matters arising from or in any way relating to all matters and determinations and affairs delegated by such Stockholder to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative under the terms of this Agreement and the Other Agreements. This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Stockholder or by operation of law, whether by the death or incapacity of any Stockholder that is an individual, termination of any trust or estate, the dissolution, liquidation or bankruptcy or any corporation, partnership or other entity or the occurrence of any other event, and any action taken by the Stockholders’ Representative shall be as valid as if such death, incapacity, termination, dissolution, liquidation, bankruptcy or other event had not occurred, regardless of whether or not the Stockholders’ Representative shall have received any notice thereof. The Stockholders’ Representative hereby accepts such appointment, authority appointment and poweragrees to perform its duties with the same degree of care as it dedicates to its own personal affairs. Without limiting the generality In consideration for its performance of the foregoingits duties hereunder, the Stockholders’ Representative shall have be paid a cash fee at Closing in the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (aggregate amount as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause agreed between the Stockholders’ Representative and the Stockholders, which amount shall be paid by each of the Stockholders in accordance with his or its Pro Rata Portion. The Stockholders shall have the right to take all actions with respect provide written instructions to the Stockholders’ Representative necessary with respect to permit actions involving individual Stockholder discretion or in cases of dispute; provided, however, that the transactions contemplated hereby Stockholders’ Representative shall not be required to be consummated as promptly as practicable after take any action or respond to any instruction that is contrary to the date terms of this Agreement or any Other Agreement, including making and obtaining all Regulatory Approvalsoutside the scope of its appointment, or in conflict with any other obligations of, or instructions received by, the Stockholders’ Representative. Each of the Stockholders agrees, severally but not jointly, to indemnify the Stockholders’ Representative for any loss, liability or damage it may incur as a result of performing its duties under this appointment.
(b) If Xxxx Xxxxxxx becomes unable to serve as Stockholders’ Representative, another Stockholder or other person, as may be designated by a majority of the Stockholders, shall succeed as the Stockholders’ Representative.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect this Agreement, the stockholders of Demeter, without any further action on the part of any such stockholder, shall be deemed to have consented to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in appointment of Xxx Xxxxxxx as the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent representative and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions for and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for such stockholders (the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement"Stockholders' Representative"), and to facilitate the consummation taking by the Stockholders' Representative of any and all actions and the transactions contemplated hereby (as it relates making of any decisions required or permitted to be taken by him under this Agreement or the Contingent Value Rights) and thereby. By executing this Escrow Agreement, the Stockholders’ Representative accepts such appointmentincluding, authority and power. Without limiting the generality of the foregoingwithout limitation, the Stockholders’ Representative shall have exercise of the power to take any (i) execute the Escrow Agreement, (ii) authorize delivery to Finisar of the following actions on behalf Escrow Shares in satisfaction of the holders of the Contingent Value Rights: to give and receive noticesIndemnification Claims, communications and consents under this Agreement (as it relates to the Contingent Value Rightsiii) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to agree to, negotiate, enter into settlements and compromises of, resolve of and comply with Law orders of courts and other orders or awards of third-party intermediaries arbitrators with respect to such Indemnification Claims, (iv) resolve any Indemnification Claims and (v) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of the foregoing. Accordingly, the Stockholders' Representative has unlimited authority and power to act on behalf of each stockholder with respect to the disposition, settlement or other handling of all Indemnification Claims against the Escrow. With respect to any interest in the Escrow, the stockholders of Demeter will be bound by all actions taken by the Stockholders' Representative in connection with all Indemnification Claims, and Finisar shall be entitled to rely on any action or decision of the Stockholders' Representative. The Stockholders' Representative will incur no liability with respect to any disputes action taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct or bad faith. In all questions arising under this Agreement or the CVR Escrow Agreement; , the Stockholders' Representative may rely on the advice of counsel, and the Stockholders' Representative will not be liable to makeanyone for anything done, executeomitted or suffered in good faith by the Stockholders' Representative based on such advice. Except as expressly provided herein, 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 and all things and the Stockholders' Representative will not be required to take any and all action that involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. At any time during the term of the Escrow Agreement, holders of a majority of the Escrow Shares subject to Indemnification Claims under this Article IX may, by written consent, appoint a new representative as the Stockholders’ Representative, in its sole ' Representative by sending notice and absolute discretion, may consider necessary or proper or convenient in connection with or a copy of the written consent appointing such new representative signed by holders of a majority of the Escrow Shares to carry out Finisar and the activities described in this Section 6.16, in each case except as limited by Escrow Agent. Such appointment will be effective upon the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after later of the date of this Agreement, including making indicated in the consent or the date such consent is received by Finisar and obtaining all Regulatory Approvalsthe Escrow Agent.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Finisar Corp)
Appointment of Stockholders’ Representative. For purposes (a) Each Stockholder hereby appoints and designates Xxxxxx Xxxxxxx as its agent and attorney-in-fact (the "Stockholders’ Representative") for and on behalf of the Stockholders to give and receive notices and communications, to resolve, all questions, disputes, conflicts and controversies concerning the purchase price adjustment pursuant to Section 2.3, to authorize payment to any Buyer Indemnified Party in satisfaction of indemnification claims under Article VII by any Buyer Indemnified Party (including, but not limited to authorizing the release of funds from the Escrow Amount), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Buyer Indemnified Party against any Stockholder or by any such Stockholder against any Blass Indemnified Party or any dispute between any Buyer Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ ' Representative on behalf for the accomplishment of the holders of Contingent Value Rights in connection with this Agreement foregoing or (as it relates to Contingent Value Rightsii) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted specifically mandated by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions terms of this Agreement or the Escrow Agreement.
(as it relates to the Contingent Value Rightsb) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the The Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ ' Representative shall not be liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith and in the exercise of reasonable judgment, even though such act or omission constitutes negligence on the part of such Stockholders' Representative. The Stockholders' Representative shall only have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under duties expressly stated in this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiateshall have no other duty, enter into settlements and compromises of, resolve and comply with Law and other orders express or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to 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 and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvalsimplied.
Appears in 1 contract
Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) The Company and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is Principal Stockholders hereby appointed, authorized and empowered to be the exclusive representative, appoint Xxxxx X. XxxXxxxx as agent and the attorney-in-fact of the holders Principal Stockholders, with full authority to act, for and on behalf of Contingent Value Rights, any or all of Principal Stockholders (in each case with full power of substitutionsubstitution in the premises), to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be with such matters as are reasonably necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate for the consummation of the transactions contemplated hereby hereby, including, without limitation, (as it relates a) to receive notice of, to defend and to compromise on their behalf with Parent any claims asserted under this Agreement or the Escrow Agreement, (b) to execute and deliver on behalf of the Principal Stockholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement or the Escrow Agreement, (c) to engage counsel, accountants or other representatives in connection with the foregoing matters and (d) to take such further actions, including coordinating and administering the pre-Closing and the post-Closing matters related to the Contingent Value Rights) rights and thereby. By executing obligations of the Principal Stockholders under this Agreement or the Escrow Agreement, to send and receive notices on behalf of the Principal Stockholders under this Agreement or the Escrow Agreement, and to provide any consents on behalf of the Principal Stockholders as are authorized in or contemplated by this Agreement or the Escrow Agreement (the above named representative, as well as any subsequent representative the Principal Stockholders who hold at least a majority of the Merger Consideration may appoint from time to time to replace Xxxxx X. XxxXxxxx being referred to herein as the “Stockholders’ Representative accepts such appointment, authority and powerRepresentative”). Without limiting the generality of the foregoing, the The Stockholders’ Representative shall have the full power and authority to take any represent all of the following actions on behalf of the holders of the Contingent Value Rights: Principal Stockholders and their successors with respect to give and receive notices, communications and consents all matters arising under this Agreement (as it relates to or the Contingent Value Rights) Escrow Agreement and all actions taken by the CVR Agreement on behalf Stockholders’ Representative hereunder and thereunder shall be binding upon all of the holders Principal Stockholders and their successors as if expressly confirmed and ratified in writing by each of Contingent Value Rights; them, and no Principal Stockholder shall have the right to negotiateobject, enter into settlements and compromises ofdissent, resolve and comply with Law and protest or otherwise contest any such actions. The Stockholders’ Representative shall not be liable to any Principal Stockholder, Parent, the Surviving Corporation or their respective Affiliates or any other orders or awards of third-party intermediaries Person with respect to any disputes arising action taken or omitted to be taken by the Stockholders’ Representative in his role as Stockholders’ Representative under or in connection with this Agreement (all of which actions and omissions shall be legally binding upon each Principal Stockholder), unless such action or omission constitutes fraud, gross negligence, willful misconduct or bad faith on the CVR part of the Stockholders’ Representative. Parent, Merger Co. and the Surviving Corporation shall be entitled to rely on such appointment and treat such Stockholders’ Representative as the duly appointed attorney-in-fact of each Principal Stockholder for all purposes of this Agreement; . Each Principal Stockholder who executes this Agreement, by such execution and without any further action, confirms such appointment and authority. Xxxxxx Godward LLP shall serve as legal counsel to make, execute, acknowledge the Stockholders’ Representative until such time as the Principal Stockholders who hold at least a majority of the Merger Consideration appoint a successor to replace Xxxxxx Godward LLP. All fees 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 and all things and to take any and all action that expenses of the Stockholders’ Representative, in its sole and absolute discretionincluding any legal fees, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited shall be paid by the CVR Agreement. The Company shall cause the Principal Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.
Appears in 1 contract
Samples: Merger Agreement (Itc Deltacom Inc)
