Appointment of the Shareholder Representative. By virtue of the approval of the Merger and this Agreement by the requisite vote of the Company’s shareholders, each of such shareholders and their transferees (collectively, the “Shareholders”) shall be deemed to have appointed the Shareholder Representative to act on behalf of the Shareholders with respect to all matters relating to this Article IX, including in considering and certifying the amount of any Losses, in taking any action on behalf of the Shareholders pursuant to this Article IX, and generally in performing all acts expressly required or permitted to be performed by the Shareholder Representative pursuant hereto; provided, however, that the Shareholder Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Buyer shall have the right to deal exclusively with the Shareholder Representative with respect to all matters under this Article IX and Buyer shall not have any liability to any Shareholder for any acts or omissions of the Shareholder Representative, or any acts or omissions taken or not taken by Buyer at the direction of the Shareholder Representative. The Shareholder Representative will have no liability to the Shareholders with respect to actions taken or omitted to be taken in the Shareholder Representative’s capacity as the Shareholder Representative, except with respect to any liability resulting from the Shareholder Representative’s gross negligence or willful misconduct. The Shareholder Representative shall be entitled to rely upon any directions received from holders of a majority of the Buyer Common Stock received in the Merger; provided, however, that the Shareholder Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in his capacity as the Shareholder Representative, unless the Shareholder Representative has been provided with funds, security or indemnities from the Shareholders which, in the sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative against the costs, expenses and liabilities which may be incurred by the Shareholder Representative in responding to such direction or taking such action. The Shareholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as the Shareholder Representative shall deem necessary in connection with exercising the Shareholder Representative’s powers and performing the Shareholder Representative’s function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. In the event that the Shareholder Representative expends all funds reserved for him pursuant to Section 1.5(e), the Shareholder Representative shall be entitled to reimbursement by the Shareholders, from cash payable to the Shareholders pursuant to Sections 1.5(a)(iv) and 1.5(a)(v), for all reasonable expenses, disbursements and advances (including fees and disbursements of the Shareholder Representative’s counsel, experts and other agents and consultants) incurred by the Shareholder Representative in such capacity.
Appears in 1 contract
Appointment of the Shareholder Representative. By virtue For purposes of this Agreement, Mxxx X. Xxxxxxx is hereby designated by the Company as the representative of the approval Shareholders (the “Shareholder Representative”) and is hereby appointed the agent and attorney-in-fact of the Merger and this Agreement by Shareholders to take the requisite vote of the Company’s shareholders, each of actions set forth herein. All such shareholders and their transferees (collectively, the “Shareholders”) actions shall be deemed to have appointed be facts ascertainable outside this Agreement and shall be binding on the Shareholders. As a condition to each Shareholder receiving any payment in respect of its allocable share of the Merger Consideration, such Shareholder must deliver to the Company or the Exchange Agent (through the Letter of Transmittal or otherwise) its written appointment of the Shareholder Representative as its agent on the terms described herein. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for its services. In the event of the Shareholder Representative’s resignation, or inability to act perform the duties of the Shareholder Representative as set forth in this Section 11.1, the Shareholder Representative shall use its Reasonable Efforts to promptly designate another Person as a successor Shareholder Representative.
(a) The Shareholder Representative is hereby authorized, effective from and after the Closing Date, for and on behalf of the Shareholders and without inquiry of and without additional approval from the Shareholders, to:
(i) receive all notices, communications and deliveries on behalf of the Shareholders under this Agreement and to receive and accept service of legal process in connection with respect to all matters relating to any Proceeding arising under this Article IX, including in considering and certifying the amount of any Losses, in taking any Agreement;
(ii) take such action on behalf of the Shareholders pursuant to this Article IX, and generally in performing all acts expressly required or permitted to be performed by as the Shareholder Representative pursuant hereto; provided, however, that may deem appropriate in respect of:
(1) taking such action as the Shareholder Representative shall have no obligation is authorized to act take by this Agreement;
(2) receiving all documents or certificates and making all determinations on behalf of the Shareholders except required by this Agreement;
(3) all such other matters as expressly provided herein. Buyer shall have the right to deal exclusively with the Shareholder Representative may deem necessary or appropriate in connection with the administration of its duties under this Agreement and the transactions contemplated herein;
(4) taking all such action as may be necessary after the Closing Date on behalf of the Shareholders to carry out any of the transactions contemplated by this Agreement and the Holdback Agreement;
(5) negotiating, settling, and resolving on behalf of the Shareholders any claim by a Parent Indemnified Party for Losses pursuant to this Agreement;
(6) bringing any claim for breach of this Agreement by Parent, Merger Sub or the Surviving Company on behalf of the Shareholders and negotiating, settling and resolving any such claim; or
(7) bringing any claim for indemnification against Parent, Merger Sub or the Surviving Company pursuant to this Agreement on behalf of the Shareholders and negotiating, settling and resolving any such claim.
(b) By approving this Agreement and the Merger, the Shareholders will be deemed to have (i) consented and agreed to the appointment of the Shareholder Representative for the purposes described herein, which appointment shall be deemed coupled with an interest and shall be irrevocable, and (ii) acknowledged that the Shareholder Representative will receive funds as lender with respect to all matters under this Article IX and Buyer the Repaid Indebtedness.
(c) In performing its duties hereunder, the Shareholder Representative shall act for the Shareholders in the manner the Shareholder Representative believes to be in the best interest of the Shareholders taken as a whole, but the Shareholder Representative shall not have any liability be responsible to any Shareholder for any acts loss or omissions damage that any Shareholder may suffer by reason of the performance by the Shareholder Representative of its duties under this Agreement other than loss or damage arising from gross negligence, willful misconduct or bad faith in the performance of the Shareholder Representative, or any acts or omissions taken or not taken by Buyer at the direction of the Shareholder Representative. ’s duties under this Agreement.
(d) The Shareholder Representative will have no liability is authorized to perform its duties under this Agreement, the Shareholders with respect Holdback Agreement and the Exchange Agent Agreement notwithstanding any dispute or disagreement among the Shareholders, and any Person (including Parent and the Surviving Company) shall be entitled to rely on any and all actions taken or omitted to be taken in by the Shareholder Representative under this Agreement without liability to, or obligation to inquire of, any of the Shareholders, all of which actions and omissions shall be legally binding upon the Shareholders.
(e) The Shareholder Representative may resign at any time by giving notice to Parent and to the Shareholders (at their addresses last known to the Shareholder Representative’s capacity as the Shareholder Representative), except with respect to any liability resulting from the Shareholder Representative’s gross negligence or willful misconduct. The Shareholder Representative which resignation shall be entitled to rely effective upon any directions received from holders the designation of a majority successor, the acceptance of the Buyer Common Stock received in designation by such successor and the Merger; provided, however, that giving of notice thereof to Parent.
(f) Each Shareholder shall severally (based on such Shareholder’s Pro Rata Percentage) indemnify and hold harmless the Shareholder Representative shall not be required to follow any such directionfrom and against all liabilities, and shall be under no obligation to take any action in his capacity as the Shareholder Representativelosses, unless costs, damages or expenses (including attorneys’ fees) reasonably incurred or suffered by the Shareholder Representative has been provided with fundsarising out of or otherwise resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement, security other than such liabilities, losses, costs, damages or indemnities expenses arising out of or resulting from the Shareholders whichgross negligence, in the sole determination willful misconduct or bad faith of the Shareholder Representative. Any notices, are sufficient consents or other communications required to protect be sent or given hereunder by any of the Shareholder Representative against Parties shall in every case be in writing and shall be deemed properly served if and when (a) delivered by hand, (b) transmitted by electronic mail or facsimile with confirmation of transmission or (c) delivered by express overnight delivery service, or registered or certified mail, return receipt requested, to the costs, expenses and liabilities which Parties at the addresses as set forth below or at such other addresses as may be incurred by furnished in writing; provided that in order for electronic mail to constitute proper notice hereunder, such email must specifically reference this Section 11.1 and state that it is intended to constitute notice hereunder.
(i) If to the Shareholder Representative in responding Company (prior to such direction the Closing) or taking such action. The Shareholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as the Shareholder Representative shall deem necessary in connection with exercising the Shareholder Representative’s powers and performing : Associated Citrus Packers, Inc. 2 X 0xx Xx. Xxxx, Xxxxxxx 00000-0000 Attention: Mxxx X. Xxxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 Email: mxxxxxxxxxxx@xxxxx.xxx Moyes Sellers & Hxxxxxxxx 1000 X. Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000-0000 Attention: Jxxxxxx X. Xxxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 Email: jxxxxxxxx@xxx-xxx.xxx
(ii) If to Parent, Merger Sub or the Shareholder Representative’s function hereunder and Surviving Company: Limoneira Company 1000 Xxxxxxxx Xxxx Santa Paula, California 93060 Attention: Jxxxxx X. Xxxxxx, Chief Financial Officer Tel: 805-525-5541 ext. 249 Fax: 800-000-0000 Email: jxxxxxx@xxxxxxxxx.xxx Sxxxxx Xxxxxxx (in the absence of bad faith on the part of the Shareholder RepresentativeUS) shall be entitled to conclusively rely on the opinions and advice of such persons. In the event that the Shareholder Representative expends all funds reserved for him pursuant to Section 1.5(e)LLP 200 X. Xxxxxx Xxxxxx, the Shareholder Representative shall be entitled to reimbursement by the ShareholdersXxxxx 0000 Xxxxxxxxxx, from cash payable to the Shareholders pursuant to Sections 1.5(a)(iv) and 1.5(a)(v), for all reasonable expenses, disbursements and advances (including fees and disbursements of the Shareholder Representative’s counsel, experts and other agents and consultants) incurred by the Shareholder Representative in such capacity.Xxxx 00000
Appears in 1 contract
Samples: Merger Agreement (Limoneira CO)
Appointment of the Shareholder Representative. By virtue of the approval of the Merger and this Agreement by the requisite vote of the Company’s shareholders, each of such shareholders and their transferees (collectively, the “Shareholders”) shall be deemed to have appointed Each Shareholder irrevocably appoints the Shareholder Representative as the Shareholder’s true and lawful attorney in fact and agent, with full power of substitution or re-substitution, to act on behalf of the Shareholders Shareholder with respect to all matters relating to this Article IX, including in considering and certifying the amount of any Losses, in taking any action on behalf transfer of the Shareholders pursuant to this Article IX, and generally in performing all acts expressly required or permitted to be performed Shares owned by the Shareholder Representative pursuant hereto; providedto Purchaser in accordance with the terms and provisions of this Agreement, however, that the Shareholder Representative shall have no obligation and to act on behalf of the Shareholders except Shareholder in any litigation or arbitration involving this Agreement, to do or refrain from doing all further acts and things, and to execute all such documents as expressly provided herein. Buyer shall have the right to deal exclusively with the Shareholder Representative will deem necessary or appropriate in connection with respect the Transactions, including the power to:
(a) execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates, statements, notices and other documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the Transactions, including any amendments to all matters under this Article IX Agreement;
(b) interpret the terms and Buyer shall not have any liability provisions of this Agreement and the Transaction Documents to any be executed and delivered by Shareholder in connection with this Agreement;
(c) receive funds, make payments of funds, and give receipts for any acts or omissions funds;
(d) receive funds for the payment of expenses of the Shareholder Representativeand apply those funds in payment for those expenses;
(e) make any determinations and settle any matters in connection with the adjustments to the Cash Purchase Price in Article 3, any other matters relating to any amounts to be received by such Shareholder under this Agreement, and any other dispute under this Agreement;
(f) give and receive notices and communications;
(g) do or refrain from doing any acts further act or omissions taken or not taken by Buyer at the direction deed on behalf of the Shareholder Representativethat the Shareholder Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement as fully and completely as the Shareholder could do if personally present; and
(h) receive service of process in connection with any claims under this Agreement. The appointment of the Shareholder Representative will have no liability to is coupled with an interest and is irrevocable and shall survive the Shareholders with respect to actions Closing, and Purchaser, the Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action taken or omitted to be taken in the Shareholder Representative’s capacity as the Shareholder Representative, except with respect to any liability resulting from the Shareholder Representative’s gross negligence or willful misconduct. The Shareholder Representative shall be entitled to rely upon any directions received from holders of a majority of the Buyer Common Stock received in the Merger; provided, however, that the Shareholder Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in his capacity as the Shareholder Representative, unless the Shareholder Representative has been provided with funds, security or indemnities from the Shareholders which, in the sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative against the costs, expenses and liabilities which may be incurred by the Shareholder Representative in responding all matters referred to such direction herein, all of which shall be binding on the Shareholders. All notices required to be made or taking such actiondelivered by Purchaser to the Shareholders described above in this Section 13.1 will be made to the Shareholder Representative for the benefit of the Shareholders and will discharge in full all notice requirements of Purchaser to the Shareholders with respect thereto. The Shareholder Representative shall be entitled to engage will promptly provide all Shareholders with copies of all such counsel, experts and other agents and consultants as the Shareholder Representative shall deem necessary in connection with exercising the Shareholder Representative’s powers and performing the Shareholder Representative’s function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such personsnotices. In the event The Shareholders confirm all that the Shareholder Representative expends will do or cause to be done by virtue of her appointment as the representative of the Shareholders under this Agreement. The Shareholder Representative will act for the Shareholders on all funds reserved for him pursuant to Section 1.5(e), of the matters set forth in this Agreement in the manner the Shareholder Representative shall believes to be entitled in the best interest of the Shareholders and consistent with the obligations of the Shareholders under this Agreement, but the Shareholder Representative will not be responsible to reimbursement any Shareholder for any loss or Damages that any Shareholder may suffer by the Shareholders, from cash payable to the Shareholders pursuant to Sections 1.5(a)(iv) and 1.5(a)(v), for all reasonable expenses, disbursements and advances (including fees and disbursements performance of the Shareholder Representative’s counselduties under this Agreement, experts other than loss or Damages arising from intentional violations of Law or gross negligence in the performance of such duties under this Agreement. The Shareholder Representative will not have any duties or responsibilities except those expressly set forth in this Agreement, and other agents and consultants) incurred by no implied covenants, functions, responsibilities, duties, obligations or liabilities will be read into this Agreement or will otherwise exist against the Shareholder Representative in such capacityRepresentative.
Appears in 1 contract
Appointment of the Shareholder Representative. By virtue (a) In order to administer efficiently the defense and/or settlement of any claims for Losses for which the Shareholders may be required to pay or indemnify any of the Purchaser Indemnified Parties pursuant to Article IX and Sections 2.11 and 11.1(a)(ii) hereof, and otherwise, each Shareholder, by voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger and this Agreement by the requisite vote consummation of the Company’s shareholdersMerger, each executing the Letter of such shareholders Transmittal, or participating in the Merger and their transferees (collectivelyreceiving the benefits thereof, including the “Shareholders”) right to receive the consideration payable in connection with the Merger, shall be deemed to have irrevocably nominated, constituted and appointed the Shareholder Representative as his/her/its true and lawful agent, attorney-in-fact and representative (with full power of substitution in the premises), and grant unto said agent, attorney-in-fact and representative full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the transactions contemplated by this Agreement, as fully to all intents and purposes as the Shareholders could do in person, hereby ratifying and confirming all that the Shareholder Representative may lawfully do or cause to be done by virtue hereof. Each Shareholder agrees that such agency, proxy and power of attorney are coupled with an interest, and are therefore irrevocable without the consent of the Shareholder Representative and Purchaser and shall survive the death, incapacity, bankruptcy or dissolution of each such Shareholder. By his execution hereof, the Shareholder Representative hereby accepts such appointment.
(b) The Shareholder Representative is hereby authorized (i) to take all actions necessary or desirable, in connection with the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Shareholders and to transact matters of litigation) for which the Shareholders may be required to pay or indemnify the Purchaser Indemnified Parties pursuant to Article IX and Sections 2.11 and 11.1(a)(ii) hereof, (ii) to take all actions necessary or desirable in connection with respect the determination of the Merger Consideration, each Shareholder's Pro Rata Share, the Aggregate Series E Liquidation Preference, the Aggregate Series D Preferred Stock Merger Consideration, the Net Merger Consideration, the Closing Residual Cash Consideration, the Closing Residual Stock Consideration, the Final Residual Cash Consideration, the Final Residual Stock Consideration and the Final Closing Date Net Working Capital, (iii) to give and receive all matters relating notices required to be given under this Agreement, the Holdback Agreement, the Paying Agent Agreement and the other agreements contemplated hereby to which all of the Shareholders who are entitled to receive any portion of the Merger Consideration hereunder are subject, and (iv) to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Paying Agent Agreement, Holdback Agreement and any amendments thereto as the representative of the Shareholders;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver this Agreement, all amendments and waivers to this Article IXAgreement that the Shareholder Representative deems necessary or appropriate, including whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to appoint a paying agent for the disbursement of funds to the Shareholders pursuant to this Agreement;
(vi) to receive funds for the payment of expenses of the Shareholders, to deposit such funds in considering such accounts as the Shareholder Representative deems appropriate and certifying the amount of apply such funds in payment for such expenses;
(vii) to do or refrain from doing any Losses, in taking any action further act or deed on behalf of the Shareholders pursuant that the Shareholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Article IXAgreement as fully and completely as the Shareholders could do if personally present;
(viii) to receive service of process in connection with any claims under this Agreement;
(ix) to engage attorneys, accountants and other professionals and experts (the Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and generally in performing all acts expressly required or permitted to be performed any action taken by the Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith); and
(x) to establish the SCP Account, to administer the SCP Account pursuant hereto; providedto the terms of the SCP Assignment and Assumption Agreement, howeverand to fully pay and discharge from the SCP Account all obligations and liabilities under the Special Compensation Plan assigned to and assumed by the SCP Entity.
(c) In the event that the Shareholder Representative dies, that becomes unable to perform his responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the shares of the Company's capital stock issued and outstanding immediately prior to the Effective Time, voting together as a single class, shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Shareholder Representative for all purposes of this Agreement.
(d) All decisions and actions by the Shareholder Representative, including the defense or settlement of any claims for Losses for which the Shareholders may be required to pay or indemnify the Purchaser Indemnified Parties pursuant to Article IX and Sections 2.11 and 11.1(a)(ii) hereof, or for which the Purchaser may have Set-Off rights under Section 9.4 hereof, shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Purchaser shall be able to rely conclusively on the instructions and decisions of the Shareholder Representative as to the determination of the Merger Consideration, the Aggregate Series E Liquidation Preference, the Aggregate Series D Preferred Stock Merger Consideration, the Net Merger Consideration, the Closing Residual Cash Consideration, the Closing Residual Stock Consideration, the Final Residual Cash Consideration, the Final Residual Stock Consideration, the Final Closing Date Net Working Capital, each Shareholder's Pro Rata Share, and the settlement of any claims for Losses for which the Shareholders may be required to pay or indemnify the Purchaser Indemnified Parties pursuant to Article IX and Sections 2.11 and 11.1(a)(ii) hereof and any other actions required to be taken by the Shareholder Representative hereunder, and no party hereunder or any Shareholder shall have any cause of action against the Purchaser, Parent or Merger Sub for any action taken by the Purchaser, Parent or Merger Sub in reliance upon the instructions or decisions of the Shareholder Representative.
(f) All actions, decisions and instructions of the Shareholder Representative shall be conclusive and binding upon all of the Shareholders, and the Shareholder Representative shall have no obligation liability, and no Shareholder shall have any cause of action against the Shareholder Representative under any legal or equitable theory whatsoever, for any action taken or not taken, decision made or instruction given by the Shareholder Representative under this Agreement, except to act the extent involving gross negligence, bad faith or willful misconduct on his part.
(g) The Shareholder Representative shall not have by reason of this Agreement or the Shareholder Representative Agreement a fiduciary relationship with any Shareholder, except in respect of amounts received on behalf of such Shareholder.
(h) The Shareholder Representative shall not be liable to any of the Shareholders for any apportionment or distribution of payments made by him, except to the extent involving gross negligence, bad faith or willful misconduct on his part, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Shareholder to whom payment was due, but not made, shall be to recover from the other Shareholders any payment in excess of the amount to which they are determined to have been entitled. Each Shareholder receiving Merger Consideration agrees to reimburse the Shareholder Representative for such Shareholder’s Pro Rata Share of all out-of-pocket expenses incurred by the Shareholder Representative in the performance of his, her or its duties hereunder. Each such Shareholder agrees that such Shareholder’s Pro Rata Share of such reasonable out-of-pocket expenses may be distributed to the Shareholder Representative, on behalf of the Shareholders except as expressly provided herein. Buyer shall have Shareholder, from the right to deal exclusively with Expense Fund at the Shareholder Representative with respect to all matters under this Article IX and Buyer shall not have any liability to any Shareholder for any acts or omissions request of the Shareholder Representative, and, in the event such out-of-pocket costs and expenses exceed the amount remaining in the Expense Fund, the Shareholder Representative shall be entitled to recover such amounts from the Shareholders receiving Merger Consideration on a several basis with respect to such Shareholder's Pro Rata Share of the excess. No provision of this Agreement shall require the Shareholder Representative to expend or risk its own funds or otherwise incur any acts financial liability in the exercise or omissions taken performance of any of its powers, rights, duties or not taken by Buyer at privileges under this Agreement. This indemnification shall survive the direction termination of this Agreement.
(i) The Shareholders receiving Merger Consideration shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative. The ’s duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel or any other expert, consultant or advisor retained by the Shareholder Representative will have no liability to shall be conclusive evidence of such good faith), including the Shareholders with respect to actions taken or omitted to be taken in reasonable fees and expenses of any legal counsel retained by the Shareholder Representative’s capacity as the Shareholder Representative, except with respect to any liability resulting from the Shareholder Representative’s gross negligence or willful misconduct. The Shareholder Representative shall be entitled to rely upon any directions received from holders of a majority of the Buyer Common Stock received in the Merger; provided, however, that the Shareholder Representative shall not be required to follow any such directionrely, and shall be under no obligation fully protected in relying, upon the Spreadsheet and any statements furnished to take it by any action in his capacity as Shareholder or the Shareholder Representative, unless the Shareholder Representative has been provided with funds, security Purchaser or indemnities from the Shareholders which, in the sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative against the costs, expenses and liabilities which may be incurred any other evidence deemed by the Shareholder Representative in responding to such direction or taking such action. The Shareholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as reliable.
(j) Certain Shareholders (the “Advisory Group”) have concurrently herewith entered into a letter agreement with the Shareholder Representative regarding direction to be provided by the Advisory Group to the Shareholder Representative. The Advisory Group shall deem necessary incur no liability to the Shareholders for any liability incurred by the members of the Advisory Group while acting in good faith and arising out of or in connection with exercising the Shareholder Representative’s powers and performing acceptance or administration of their duties (it being understood that any act done or omitted pursuant to the Shareholder Representative’s function hereunder and (in the absence advice of bad faith counsel shall be conclusive evidence of such good faith), even if such act or omission constitutes negligence on the part of the Shareholder RepresentativeAdvisory Group or one of its members. This indemnification shall survive the termination of this Agreement.
(k) The provisions of this Section 12.17 are independent and severable, are irrevocable and coupled with an interest and shall be entitled enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement; and
(l) The provisions of this Section 12.17 shall be binding upon the heirs, legal representatives, successors and assigns of each Shareholder, and any references in this Agreement to conclusively rely on a Shareholder or the opinions Shareholders shall mean and advice include the successors to the rights of such persons. In the event that the Shareholder Representative expends all funds reserved for him Shareholders hereunder, whether pursuant to Section 1.5(e)testamentary disposition, the Shareholder Representative shall be entitled to reimbursement by the Shareholders, from cash payable to the Shareholders pursuant to Sections 1.5(a)(iv) Laws of descent and 1.5(a)(v), for all reasonable expenses, disbursements and advances (including fees and disbursements of the Shareholder Representative’s counsel, experts and other agents and consultants) incurred by the Shareholder Representative in such capacitydistribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Keyw Holding Corp)
