Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to: (i) act for any such Holder with respect to its Ownership Interest Share; (ii) accept any notices and communications pursuant to Section 19 on behalf of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19; (iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder; (iv) amend or waive any provision hereof in any manner; (v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Representative, in its sole discretion, deems necessary or advisable in the performance of the duties of the Representative; (vi) do or refrain from doing any further act or deed on behalf of any such Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative; (vii) execute, on behalf of such Holder, any agreement or other document necessary or appropriate in connection with the transactions contemplated by this Agreement; and (viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with the transactions contemplated by this Agreement. (b) The Representative shall promptly provide written notice to each Holder of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18. (c) The appointment of the Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein. (d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares. (e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Fuse Medical, Inc.), Merger Agreement (Golf Rounds Com Inc), Merger Agreement (Golf Rounds Com Inc)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act the Securityholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents excluding the Stock Restriction and Non-Compete Agreements, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersSecurityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this ARTICLE VII and in the Escrow Agreement, which shall include the full power and authority:
(a) to execute and deliver the Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes thereto as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in ARTICLE VI and this ARTICLE VII;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents excluding the Stock Restriction and Non-Compete Agreements and the consummation of the transactions contemplated hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents excluding the Stock Restriction and Non-Compete Agreements;
(c) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document excluding the Stock Restriction and Non-Compete Agreements and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to ARTICLE II and (B) indemnification claims pursuant to ARTICLE VI; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with ARTICLE II and ARTICLE VI and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Securityholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Representative and/or the Escrow Account, and receive process on behalf of any or all Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Securityholders with respect to any such claim, action, proceeding or investigation; (v) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (vi) settle or compromise any claims asserted under ARTICLE II or ARTICLE VI or under the Escrow Agreement; (vii) assume, on behalf of all of Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE VI or under the Escrow Agreement; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action;
(d) to enforce payment from the Escrow Account and of any other amounts payable to Securityholders, in each case on behalf of Securityholders, in the name of the Representative;
(vie) do to authorize and cause to be paid out of the Escrow Account the full amount of any indemnification claims in favor of any Parent Indemnified Person pursuant to ARTICLE VI and also any other amounts to be paid out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(f) to cause to be paid from the Escrow Account to the Principals in accordance with ARTICLE II any Escrow Distributions;
(g) to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Securityholder and/or of the Representative deems necessary arising out of or appropriateunder or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document excluding the Stock Restriction and Non-Compete Agreements; and
(h) 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 the sole discretion of general, to do any and all things and to take any and all action that the Representative, relating to the subject matter hereof as fully in his sole and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) executeabsolute direction, on behalf of such Holder, any agreement or other document may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (g) above and the transactions contemplated by this Agreement; and
, the Escrow Agreement and the other Transaction Documents excluding the Stock Restriction and Non-Compete Agreements. Parent and the Surviving Corporation shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders. Neither Parent nor the Surviving Corporation (viiia) make any representation or warranty need be concerned with the authority of the Representative to act on behalf of such Holder necessary all Securityholders hereunder, or appropriate in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Holder of be held liable or accountable in any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment manner for any act or omission of the Representative shall be deemed in such capacity. The grant of authority provided for in this Section 7.01 (i) is coupled with an interest and is being granted, in part, as an inducement the Company, Principals, Parent and Merger Sub to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholders and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinEscrow Account.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
Authorization of the Representative. (a) As a condition Each Stockholder, upon voting for the approval or consenting to receiving Merger Considerationthe transactions contemplated hereby, each Holder shall irrevocably constitute and appoint will have appointed the Representative. The Representative hereby agrees , or his designee or successor (as appointed in writing), who is authorized and empowered to accept such appointment act as the true agent of the Stockholders in connection with, and lawful agent to facilitate the consummation of the transactions contemplated by, this Agreement and attorney-in-fact of such Holder the other Transaction Documents, and in connection with full power of substitution the activities to act in the name, place and stead of such Holder with respect to the performance be performed on behalf of any such Holder the Stockholders under this Agreement, for the terms purposes and provisions hereofwith the powers and authority hereinafter set forth in this ARTICLE XI, which will include the full power and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power toauthority:
(i) act for any to take such Holder actions and to execute and deliver such amendments, modifications, waivers and consents in connection with respect to its Ownership Interest Share;
(ii) accept any notices this Agreement and communications pursuant to Section 19 on behalf the other Transaction Documents and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain transactions contemplated hereby and rely upon the advice of legal counsel, accountants and other professional advisors thereby as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(ii) as the Representative of the Stockholders, to enforce and protect the rights and interests of the Stockholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE II and (y) indemnification claims pursuant to ARTICLE X; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Stockholders in connection with ARTICLE II and ARTICLE X and the Transaction Documents as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Stockholders; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the Stockholders, and receive process on behalf of any or all Stockholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Stockholders with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under ARTICLE II or ARTICLE X; (G) assume, on behalf of all of Stockholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE X; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to Stockholders, in each case on behalf of Stockholders, in the name of the Representative;
(viiv) do to authorize, if required, the reduction and offset against the Escrow Amount the full amount of any Indemnified Loss in favor of any Indemnified Party pursuant to ARTICLE X and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Stockholder and/or of the Representative deems necessary arising out of or appropriateunder or in any manner relating to this Agreement or any other Transaction Document; and
(vi) 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 the sole discretion of general, to do any and all things and to take any and all action that the Representative, relating to the subject matter hereof as fully in its sole and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) executeabsolute direction, on behalf of such Holder, any agreement or other document may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (v) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with Agreement and the transactions contemplated by this Agreementother Transaction Documents.
(b) The Representative shall promptly provide written notice Parent, the Indemnified Parties, the Company and each of their Affiliates will be entitled to each Holder of any action taken on behalf rely exclusively upon the communications of the Holders by Representative relating to the foregoing as the communications of the Stockholders. None of such Persons will be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(c) The appointment grant of the Representative shall be deemed authority provided for in this Section 11.1 (a) is coupled with an interest and shall is being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Stockholder and will be binding on any successor thereto, and (b) will survive any other person distribution from the Escrow Account. Each Stockholder, by voting for the approval of or entity may conclusively and absolutely relyconsenting to the transactions contemplated hereby, without inquirywill have agreed to receive correspondence from the Representative, upon any action of the Representative as the act of each Holder including in all matters referred to hereinelectronic form.
(d) Neither If the Representative nor shall die, be removed, become disabled, resign or otherwise be unable to fulfill its agents shall be liable responsibilities hereunder, the Stockholders shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to any Holder the Representative and immediately upon or any other person or entity for any error of judgment, or any action taken, suffered or omitted prior to be taken, under this Agreement, except in the case such appointment notify Parent of the Representative’s fraud or willful misconductidentity of such successor. The Holders, severally and not jointly, Any such successor shall indemnify, reimburse, defend and hold harmless succeed the former Representative as the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shareshereunder.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Authorization of the Representative. Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxx (aand each successor appointed in accordance with Section 11.2 below) As a condition (the "Shareholders Representatives") hereby are appointed, authorized and empowered to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees to accept such appointment act as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act in the nameShareholders Representatives, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 on behalf of the HoldersControl Shareholders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Representative, in its sole discretion, deems necessary or advisable in the performance of the duties of the Representative;
(vi) do or refrain from doing any further act or deed on behalf of any such Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) execute, on behalf of such Holder, any agreement or other document necessary or appropriate in connection with and to facilitate the consummation of the transactions contemplated by this Agreement; andAgreement for the purposes and with the powers and authority hereinafter set forth in this Article 11, which shall include the power and authority:
(viiia) make To execute and deliver such waivers and consents in connection with this Agreement and the consummation of the transactions contemplated hereby as the Shareholders Representatives, in their sole discretion, may deem necessary or desirable;
(b) As the Shareholders Representatives of the Control Shareholders, to enforce and protect the rights an interests of the Control Shareholders and to enforce and protect the rights and interests of the Shareholders Representatives arising out of or under or in any representation manner relating to this Agreement the transactions provided for herein (including, without limitation, in connection with any and all claims for indemnification brought by any Control Shareholders under Section 10.3) and, in connection therewith, to (i) assert any claim or warranty institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Control Shareholders, or any person, firm or corporation or by any federal, state or local governmental or regulatory authority against the Shareholders Representatives, and receive process on behalf of any or all Control Shareholders in any such Holder necessary claim, action, proceeding or appropriate investigation and compromise or settle on such terms as the Shareholders Representatives shall determine to be appropriate, and give receipts, releases and discharges on behalf of all of the Control Shareholders with respect to, any such claim, action, proceeding or investigation; (iii) file any proofs of debts, claims and petitions as the Representatives may deem advisable or necessary; (iv) settle or compromise any claims asserted under Article 10; (v) assume, on behalf of all of the Control Shareholders the defense of any Third Party Claim; and (vi) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing actions, proceedings or investigations, it being understood that the Control Representatives shall hot have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions;
(c) To refrain from enforcing any right of the Control Shareholders or any of them and/or of the Shareholders Representatives arising out of or under or in any manner relating to this Agreement or any other agreement, instrument or document in connection with the transactions contemplated by this Agreement.foregoing;
(bd) The Representative shall promptly provide written notice 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 each Holder of do any and all things and to take any and all action taken on behalf of that the Holders by Shareholders Representatives, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Representative pursuant to the authority delegated to the Representative under this Section 18.
activities described in paragraphs (a) through (c) above and the Transactions. The appointment grant of the Representative shall be deemed authority provided for in this Section 11.1 is coupled with an interest and being granted, in part, as an inducement to Recycling to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Control Shareholder and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to binding on any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Share Exchange Agreement (Recycling Industries Inc)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true sole and lawful exclusive agent and attorney-in-fact of such Holder with full power of substitution to act the Securityholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersSecurityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this ARTICLE X and in the Escrow Agreement, which shall include the full power and authority:
(a) to execute and deliver the Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes thereto as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth herein or therein;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to ARTICLE II and (B) Indemnification Claims pursuant to ARTICLE VIII; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with ARTICLE II and ARTICLE VIII and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Securityholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all Securityholders with respect to any such claim, action, proceeding or investigation; (v) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (vi) settle or compromise any claims asserted under ARTICLE II or ARTICLE VIII or under the Escrow Agreement; (vii) assume, on behalf of all Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE VIII or under the Escrow Agreement; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action;
(d) to enforce payment from the Escrow Amount and of any other amounts payable to the Securityholders, in each case on behalf of the Securityholders, in the name of the Representative;
(vie) do or refrain from doing any further act or deed on behalf to authorize and cause to be paid out of the Escrow Amount the full amount of any such Holder that the Representative deems necessary or appropriate, Parent Indemnification Claims in the sole discretion favor of any Parent Indemnified Person pursuant to ARTICLE VIII and also any other amounts to be paid out of the Representative, relating Escrow Amount pursuant to this Agreement and the Escrow Agreement;
(f) to receive and cause to be paid to the subject matter hereof as fully and completely as Securityholders in accordance with ARTICLE II any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to Escrow Distributions received by the Representative;
(viig) to pay out of the Representative Holdback any retention due under or in respect of the D&O Policies;
(h) to waive or refrain from enforcing any right of any Securityholders and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or another Transaction Document; and
(i) 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 Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (h) above and the transactions contemplated by this Agreement, the Escrow Agreement and the other Transaction Documents. Parent, the Surviving Corporation and their Subsidiaries shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders. Neither Parent nor the Surviving Corporation (a) need be concerned with the authority of the Representative to act on behalf of all Securityholders hereunder, or (b) shall be held liable or accountable in any manner for any act or omission of the Representative in such Holdercapacity. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (a) the Representative may not enter into or grant any agreement amendments or modifications described in Section 10.1(a) or waivers or consents described in Section 10.1(b) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (b) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other document necessary Securityholders must be executed by such Securityholder to be binding on such Securityholder. The grant of authority provided for in this Section 10.1 (a) is coupled with an interest and is being granted, in part, as an inducement to the Company, Merger Subsidiary and Parent to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or appropriate liquidation of any Securityholder and shall be binding on any successor thereto, and (b) shall survive any distribution from the Escrow Account. Each Securityholder hereby appoints Representative as such Person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Person’s name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement; and
(viii) make any representation or warranty on behalf of such Holder , granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary or appropriate to be done in connection with the transactions contemplated by Merger and this Agreement.
(b) Agreement as fully to all intents and purposes as such Person might or could do in person. The Representative shall promptly provide written notice to each Holder death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment of the Representative Securityholder shall be deemed coupled with an interest and shall be irrevocable, and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate such appointment or the authority and agency of the Representative (or successor thereto)Representative. The provisions power of attorney granted in this Section 18 are binding upon the executors, heirs, legal representatives 10.1 is coupled with an interest and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseis irrevocable.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act the Securityholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersSecurityholders under this Agreement, such that a notice or communication for the purposes and with the powers and authority hereinafter set forth in this Article XI, which shall be deemed duly given to include the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;full power and authority:
(iiia) act for any to take such Holder, if applicable, actions and to execute and deliver such waivers and consents in connection with respect to all indemnification matters referred to herein, including this Agreement and the right to compromise or settle any such claim on behalf other Transaction Documents and the consummation of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain the transactions contemplated hereby and rely upon the advice of legal counsel, accountants and other professional advisors thereby as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(b) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning the determination of any amounts pursuant to Article II; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with Article II as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Securityholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent or any of its Subsidiaries, or any other Person, against the Representative;
(vi) do or refrain from doing any further act or deed , and receive process on behalf of any or all Securityholders in any such Holder that claim, action, proceeding or investigation and compromise or settle on such terms as the Representative deems necessary or shall determine to be appropriate, in the sole discretion give receipts, releases and discharges on behalf of all of the Representative, relating Securityholders with respect to the subject matter hereof as fully and completely as any such Holder could do if personally present claim, action, proceeding or investigation; (v) file any proofs, debts, claims and acting and petitions as though the Representative may deem advisable or necessary; (vi) settle or compromise any reference to such Holder herein was a reference to the Representative;
claims asserted under Article II; (vii) executeassume, on behalf of all of the Securityholders, the defense of any claim that is the basis of any claim asserted under Article II; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such Holderactions, and shall not have liability for any agreement failure to take such any action;
(c) to waive or refrain from enforcing any right of the Securityholders or any of them and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other document Transaction Document; and
(d) 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 Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (c) above and the transactions contemplated by this Agreement; and
Agreement and the other Transaction Documents. Parent and its Subsidiaries shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders. None of Parent or its Subsidiaries (viiia) make any representation or warranty need be concerned with the authority of the Representative to act on behalf of such Holder necessary all Securityholders hereunder, or appropriate in connection with the transactions contemplated by this Agreement.
(b) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (i) the Representative may not enter into or grant any waivers or consents described in
Section 11.1 (a) unless such waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be executed by such Securityholder to be binding on such Securityholder. The grant of authority provided for in this Section 11.1 is coupled with an interest and is being granted, in part, as an inducement to the Company, Parent, the First Merger Subsidiary and the Second Merger Subsidiary to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto. The Representative may be changed at any time and from time to time by the written action of Securityholders holding (or that held immediately prior to the First Effective Time) more than fifty percent (50%) of the Common Units and Series A Preferred Units, taken as a whole, and shall promptly provide become effective upon not less than thirty (30) days’ prior written notice to each Holder of Parent. Except as provided in the foregoing sentence, in the event that for any action taken on behalf reason the most recent Representative shall no longer be serving in such capacity, including, without limitation, as a result of the Holders by death, resignation or incapacity of the Representative, the outgoing Representative shall appoint a successor Representative, and if the outgoing Representative fails or is unable to appoint a successor, then the Securityholders holding (or that held immediately prior to the First Effective Time) more than fifty percent (50%) of the Common Units and Series A Preferred Units, taken as a whole, shall appoint such successor, such that at all times there will be a Representative with the authority provided hereunder. Any change in the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment foregoing sentence shall become effective upon delivery of the Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance written notice of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted change to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesParent.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Medassets Inc)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute Each Seller hereby appoints and appoint authorizes the Representative. The , and the Representative hereby agrees to accept accepts such appointment as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution authorization, to act in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate Seller in connection with any transaction contemplated hereunderthis Agreement and the Related Documents in good faith, including which shall include the power toand authority on behalf of the Sellers:
(i) act for any such Holder with respect to execute and deliver the Escrow Agreement and perform its Ownership Interest Shareobligations thereunder;
(ii) to execute, deliver and/or accept any such amendments, waivers, consents, notices and communications pursuant to Section 19 on behalf of other documents in connection with this Agreement and the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors Related Documents as the Representative, in its his sole discretion, deems may deem necessary or advisable in the performance of the duties of the Representative;
(vi) do or refrain from doing any further act or deed on behalf of any such Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) execute, on behalf of such Holder, any agreement or other document necessary or appropriate in connection with the transactions contemplated by this Agreementdesirable; and
(viiiiii) make any representation or warranty to act on behalf of such Holder necessary the Sellers pursuant to this Agreement (including Section 2.5 hereof) or appropriate the Escrow Agreement, and, in connection with therewith to assert, institute, investigate, assume the transactions contemplated by this Agreementdefense of, litigate, settle or compromise any Claim and file and prosecute appeals from any judgment rendered thereon.
(b) The Representative shall promptly provide written notice to each Holder appointment of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 187.14 shall be non-rescindable and irrevocable, and each Seller shall be bound by all actions taken by the Representative in connection with this Agreement and the Escrow Agreement, and the Purchaser shall be entitled to rely, and will incur no liability with respect to such reliance, on any action, consent, instruction or decision of the Representative as the action, consent, instruction or decision of each Seller (and shall have no responsibility or obligation to determine the authority, authenticity, accuracy or truth thereof).
(c) The appointment of Upon its demand from time to time, the Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action entitled to prompt reimbursement by each Seller of its Percentage of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally reasonable fees and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses expenses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Sharescapacity as such.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (A-Mark Precious Metals, Inc.)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true agent of the Indemnifying Parties in connection with, and lawful agent to facilitate the consummation of the transactions contemplated by, this Agreement and attorney-in-fact of such Holder the other Transaction Documents, and in connection with full power of substitution the activities to act in the name, place and stead of such Holder with respect to the performance be performed on behalf of any such Holder the Indemnifying Parties under this Agreement, for the terms purposes and provisions hereofwith the powers and authority hereinafter set forth in this ARTICLE XIV, which will include the full power and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power toauthority:
(i) act for any to take such Holder actions and to execute and deliver such amendments, modifications, waivers and consents in connection with respect to its Ownership Interest Share;
(ii) accept any notices this Agreement and communications pursuant to Section 19 on behalf the other Transaction Documents and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain transactions contemplated hereby and rely upon the advice of legal counsel, accountants and other professional advisors thereby as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(ii) as the Representative of the Indemnifying Parties, to enforce and protect the rights and interests of the Indemnifying Parties and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE II (y) indemnification claims pursuant to ARTICLE XIII and (z) Dissenting Shares Claims; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Indemnifying Parties in connection with ARTICLE II and ARTICLE XIII and the Transaction Documents as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Indemnifying Parties; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the Indemnifying Parties, and receive process on behalf of any or all Indemnifying Parties in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Indemnifying Parties with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under ARTICLE II or ARTICLE XIII; (G) assume, on behalf of all of the Indemnifying Parties, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE XIII; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to Indemnifying Parties, in each case on behalf of the Indemnifying Parties, in the name of the Representative;
(iv) to authorize, if required, delivery to an Indemnified Party from the Escrow Account of the full amount of any Indemnified Loss pursuant to ARTICLE XIII and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to receive and cause to be paid to Indemnifying Parties in accordance with ARTICLE II and ARTICLE XIII any distributions received by the Representative;
(vi) do to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Indemnifying Party and/or of the Representative deems necessary arising out of or appropriate, under or in the sole discretion of the Representative, any manner relating to the subject matter hereof as fully and completely as this Agreement or any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;other Transaction Document; and
(vii) to make, execute, on behalf of acknowledge and deliver all such Holderother agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any agreement or other document and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (vii) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with Agreement and the transactions contemplated by this Agreementother Transaction Documents.
(b) The Parent, the Indemnified Parties and each of their Affiliates, and at and after the Effective Time, the Surviving Corporation, the Subsidiaries and each of their Affiliates will be entitled to rely exclusively upon the communications of the Representative shall promptly provide written notice relating to each Holder the foregoing as the communications of any action taken the Indemnifying Parties. None of such Persons (a) need be concerned with the authority of the Representative to act on behalf of the Holders by all Indemnifying Parties hereunder, or (b) will be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(c) The appointment grant of the Representative shall be deemed authority provided for in this Section 14.1 (a) is coupled with an interest and shall is being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Indemnifying Party and will be binding on any successor thereto, and (b) will survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinEscrow Account.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (SolarWinds, Inc.)
Authorization of the Representative. Each Seller, by his, her or its execution of this Agreement, hereby appoints, authorizes and empowers the Representative to act as the agent of the Sellers for the purposes and with the powers and authority hereinafter set forth in this Article X and in the Escrow Agreement, which shall include the full power and authority:
(a) As a condition to receiving Merger Considerationexecute, each Holder shall irrevocably constitute deliver and appoint perform the Escrow Agreement (with such modifications or changes thereto as to which the Representative. The Representative hereby agrees to accept such appointment , in its reasonable discretion, shall have consented to);
(b) as the true Representative of the Sellers, to enforce and lawful agent protect the rights and attorney-in-fact interests of the Sellers arising out of or under or in any manner relating to this Agreement and the Escrow Agreement and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning the determination of amounts pursuant to Article II, matters relating to Taxes pursuant to Section 5.05 and indemnification claims pursuant to Article VII; (ii) employ such Holder with full power of substitution agents, consultants and professionals, to act in the namedelegate authority to its agents, place and stead of to take such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, actions and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 documents on behalf of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, Sellers in accordance connection with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors Article VII as the Representative, in its sole reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Sellers; (iii) assert or institute any claim, action, proceeding or investigation pursuant to Article VII; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Buyer, or any other Person, against all of the Representative;
Sellers, and receive process on behalf of all of the Sellers in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Sellers with respect to any such claim, action, proceeding or investigation pursuant to Section 5.05(b) or Article VII; (v) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (vi) do settle or refrain from doing compromise any further act claims asserted under Section 5.05(b) or deed on behalf of any such Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
Article VII; (vii) executeassume, on behalf of such Holderall of the Sellers, the defense of any agreement claim that is the basis of any claim asserted under Section 5.05(b) or other document necessary Article VII; (viii) file and prosecute appeals from any decision, judgment or appropriate award rendered in any of the foregoing claims, actions, proceedings or investigations pursuant to Section 5.05(b) or Article VII; and (ix) pay amounts out of the Representative Holdback Amount in connection with the foregoing, it being understood that the Representative shall not have any obligation to take any such actions, shall not be required to expend any of its own funds, and shall not have liability for any failure to take such any action; provided, however, that no Seller shall be liable for any amount in excess of the Representative Holdback Amount that exceeds such Seller’s Percentage Interest of any amounts for which such Seller is obligated to pay pursuant to any action taken by the Representative pursuant to this Article X;
(c) to authorize and cause to be paid out of the Escrow Amount the full amount of any indemnification claims under Section 5.05(b) or Article VII and also any other amounts to be paid out of the Escrow Amount pursuant to this Agreement or the Escrow Agreement;
(d) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings including amendments, modifications and supplements to, and waivers of the provisions of this Agreement, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraph (a) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with Agreement and the transactions contemplated by this Escrow Agreement.
(be) The Buyer and the Company shall be entitled to rely exclusively upon the communications of the Representative, but only as it relates to the foregoing, as the communications of the Sellers. Neither Buyer nor the Company need be concerned with the authority of the Representative shall promptly provide written notice to each Holder of any action taken act on behalf of all the Holders by Sellers hereunder or shall be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(cf) The appointment grant of the Representative shall be deemed authority provided for in this Section 10.01 is coupled with an interest and is being granted, in part, as an inducement to the Company and Buyer to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Seller and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to binding on any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Authorization of the Representative. (a) As a condition to receiving the Per Share Closing Merger Consideration, each Holder of the Securityholders (other than holders of Dissenting Shares) shall irrevocably constitute and appoint agree in a Letter of Transmittal, Option Surrender Agreement, Restricted Stock Unit Surrender Agreement, or other documentation acceptable to Buyer to be bound by (i) the Representative. The provisions of this Agreement, (ii) the Escrow Agreement, (iii) the appointment of the Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Holder with full power holder for the purposes of substitution this Agreement and the Escrow Agreement (including to act in the name, place and stead of such Holder with respect receive payments pursuant to the performance this Agreement on behalf of the Securityholders), and (iv) the taking by the Representative of any such Holder and all actions and the making of any decisions required or permitted to be taken by him under the terms Escrow Agreement, including the exercise of the power to authorize delivery to any Indemnified Party of cash out of the Escrow Account in satisfaction of claims by any Indemnified Party pursuant to this Agreement. The Representative hereby is appointed, authorized and provisions hereofempowered to act as the agent of the Securityholders in connection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunderthe activities to be performed on behalf of the Securityholders under this Agreement and the Escrow Agreement, including for the purposes and with the powers and authority hereinafter set forth in this Article Nine and in the Escrow Agreement, which shall include the full power toand authority:
(i) act for any to execute and deliver the Escrow Agreement (with such Holder with respect modifications or changes thereto as to its Ownership Interest Sharewhich the Representative, in his reasonable discretion, shall have consented to) and to agree to such amendments or modifications thereto as the Representative, in his reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article Seven and this Article Nine;
(ii) accept any notices to take such actions and communications pursuant to Section 19 on behalf execute and deliver such waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by transactions contemplated hereby and thereby as the Representative, in accordance with Section 19his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(iii) act for as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (1) the determination of any amounts (including Closing Merger Consideration, Working Capital Amounts, Per Share Closing Merger Consideration, the Final Adjustment Surplus (if any) and Per Share Escrow Distribution Amount) pursuant to Article One and (2) the determination of any Buyer Indemnified Costs, (B) employ such Holderagents, if applicableconsultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with respect this Agreement and the Escrow Agreement as the Representative, in his reasonable discretion, deems to all indemnification matters referred to hereinbe in the best interest of the Securityholders, including (C) assert or institute any claim, action, Proceeding or investigation, (D) investigate, defend, contest or litigate any claim, action, Proceeding or investigation initiated by Buyer or the right to compromise Merger Sub, or settle any such claim other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholders in any such Holderclaim, action, Proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges on behalf of all of the Securityholders with respect to any such claim, action, Proceeding or investigation, (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary, (F) settle or compromise any claims asserted under this Agreement or under the Escrow Agreement, (G) assume, on behalf of all of the Securityholders, the defense of any claim that is the basis of any claim asserted under this Agreement or under the Escrow Agreement, and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, Proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, shall not have liability for any failure to take such any action, and shall not be responsible to the Securityholders if some or all of the Escrow Amount is paid to Buyer in satisfaction of Buyer Indemnified Costs, it being understood and agreed by all Securityholders that no assurances can be given that they will ultimately receive all or any portion of the Escrow Amount;
(iv) amend or waive to enforce payment from the Escrow Amount and of any provision hereof in any manner;
(v) employ, obtain and rely upon other amounts payable to the advice of legal counsel, accountants and other professional advisors as the RepresentativeSecurityholders, in its sole discretioneach case on behalf of the Securityholders, deems necessary or advisable in the performance of the duties name of the Representative;
(v) to authorize and cause to be paid out of the Escrow Amount the full amount of any Buyer Indemnified Costs in favor of any Buyer Indemnified Party, and also any other amounts to be paid out of the Escrow Amount, pursuant to this Agreement and the Escrow Agreement;
(vi) do to receive and cause to be paid to Securityholders in accordance with Schedule I any payment of Closing Merger Consideration, Final Adjustment Surplus (if any), Escrow Distributions or refrain from doing any further act or deed on behalf other payments to be made for the benefit of any such Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to Securityholders received by the Representative;
(vii) to waive or refrain from enforcing any right of the Securityholders or any of them and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(viii) to make, execute, on behalf of acknowledge and deliver all such Holderother agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any agreement or other document and all things and to take any and all action that the Representative, in his sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in subparagraphs (i) through (vii) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with , the transactions contemplated by this AgreementEscrow Agreement and the other Transaction Documents.
(b) The Buyer, Merger Sub, and the Surviving Company shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders, and such communications of the Representative shall promptly provide written notice be fully binding upon the Securityholders. None of Buyer, Merger Sub or the Surviving Company (i) need be concerned with the authority of the Representative to each Holder of any action taken act on behalf of the Holders by all Securityholders hereunder, or (ii) shall be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(c) The appointment of Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (i) the Representative may not enter into or grant any amendments or modifications described in Section 9.01(a)(i) or waivers or consents described in Section 9.01(a)(ii) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be deemed executed by such Securityholder to be binding on such Securityholder.
(d) The grant of authority provided for in this Section 9.01 (i) is coupled with an interest and is being granted, in part, as an inducement to the Company, Buyer and Merger Sub to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesEscrow Amount.
(e) The death If the Representative shall die, become disabled or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency otherwise be unable to fulfill his responsibilities as agent of the Representative (or Securityholders, then Ricardo DeAvila shall be appointed as a successor thereto). The provisions representative xxx xxxxx xxxxme the "Representative" for purposes of this Section 18 are binding upon Agreement and the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEscrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Authorization of the Representative. Xxxxx, Muse Fund III Incorporated, a Texas Corporation (athe "Representative") As a condition (and each successor appointed in accordance with Section 12.6), hereby is appointed, authorized and empowered to receiving Merger Considerationact, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 on behalf of the HoldersSecurityholders, in connection with, and to facilitate the consummation of the transactions contemplated by, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Securityholders under this Agreement and the Indemnification Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article 12 and in the Indemnification Escrow Agreement, which shall include the power and authority:
(a) To execute and deliver the Indemnification Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes therein as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, deems may deem necessary or advisable desirable to give effect to the matters set forth in the performance of the duties of the Representativethis Article 12;
(vib) do To execute and deliver such waivers and consents in connection with this Agreement and the consummation of the transactions contemplated hereby as the Representative, in its reasonable discretion, may deem necessary or refrain from doing desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) As the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any further act manner relating to this Agreement, the Indemnification Escrow Agreement and each other Transaction Document (including, but not limited to, in connection with any and all claims for indemnification brought by any Indemnified Party under Article 11 of this Agreement) and, in connection therewith, to (i) assert by claim or deed institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by any Indemnified Party, or any other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholders in any such Holder that claim, action, proceeding or investigation and compromise or settle on such terms as the Representative deems necessary or shall determine to be appropriate, in the sole discretion give receipts, releases and discharges on behalf of all of the Representative, relating Securityholders with respect to the subject matter hereof as fully and completely as any such Holder could do if personally present claim, action, proceeding or investigation; (iii) file any proofs, debts, claims and acting and petitions as though the Representative may deem advisable or necessary; (iv) settle or compromise any reference to such Holder herein was a reference to the Representative;
claims asserted under Article 11 of this Agreement; (viiv) executeassume, on behalf of all of the Securityholders, the defense of any claim that is the basis of any claim asserted under Article 11 of this Agreement; and (vi) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such Holderactions, and shall not have liability for any agreement failure to take such any action;
(d) to enforce payment from the Escrow Amount and any other amounts payable to the Securityholders, in each case on behalf of the Securityholders, in the name of the Representative or, if the Representative so elects, upon at least fifteen (15) days' prior written notice to the Securityholders and in the absence of written instructions to the contrary, in the names of one or more of the Securityholders;
(e) to cause to be paid out of the Escrow Account the full amount of any judgment or judgments and legal interest and costs awarded in favor of any Buyer Indemnified Party arising out of the indemnification provisions set forth in Article 11 of this Agreement;
(f) to refrain from enforcing any right of the Securityholders or any of them and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Indemnification Escrow Agreement or any other document Transaction Documents;
(g) to cause to be paid out of the Company Transaction Costs Holdback Amount the amount of any Company Transaction Costs not paid at or prior to Closing; and
(h) 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 Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (g) above and the transactions contemplated by this Agreement; and
, the Indemnification Escrow Agreement and the other Transaction Documents. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that (viiii) make the Representative may not enter into or grant any representation amendments or warranty modifications described in Section 12.1(a) or waivers or consents described in Section 12.1(b) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent which does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be executed by such Securityholder to be binding on behalf such Securityholder. Notwithstanding anything to the contrary herein, the Representative in its role as Representative shall have no liability whatsoever to the Company, Parent, Sub or the Surviving Corporation, except to the extent arising as a result of fraud or the breach of this Agreement on the part of such Holder necessary or appropriate Representative. The grant of authority provided for in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Holder of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
12.1 (ci) The appointment of the Representative shall be deemed is coupled with an interest and is being granted, in part, as an inducement to the Company, Parent and Sub to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to binding on any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident successor thereto; (ii) subject to the acceptanceprovisions of Section 12.6 below, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith exercised by the Representative in accordance with the advice acting by signing as a Representative of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses each of the Representative in connection with Securityholders; and (iii) shall survive any distribution from the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesEscrow Agent.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Atrium Companies Inc)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true sole and lawful agent exclusive representative, agent, proxy and attorney-in-fact of such Holder the Equityholders in connection with, and to facilitate the consummation of, the transactions contemplated in this Agreement and the other Transaction Documents, and in connection with full power of substitution the activities to act in the name, place and stead of such Holder with respect to the performance be performed on behalf of any such Holder the Equityholders under this Agreement. Without limiting the terms foregoing, the Representative is hereby appointed, authorized and provisions hereof, and empowered to do or refrain from doing all such further acts and things, and to execute all such documents, act as the Representative shall deem necessary or appropriate in connection sole and exclusive representative, agent, proxy and attorney-in-fact of the Equityholders with any transaction contemplated hereunder, including the full power toand authority:
(i) act for any to take such Holder actions and to execute and deliver such amendments, modifications, waivers and consents in connection with respect to its Ownership Interest Share;
(ii) accept any notices this Agreement, the Representative Engagement Agreement and communications pursuant to Section 19 on behalf the other Transaction Documents and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain transactions contemplated herein and rely upon the advice of legal counsel, accountants and other professional advisors thereby as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(ii) as the Representative of the Equityholders, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to Article II and (y) indemnification claims pursuant to Article X; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders in connection with Article II and Article X and the Transaction Documents as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Equityholders; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the Equityholders, and receive process on behalf of any or all Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under Article II or Article X; (G) assume, on behalf of all of Equityholders, the defense of any claim that is the basis of any claim asserted under Article II or Article X; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to Equityholders, in each case on behalf of Equityholders, in the name of the Representative;
(iv) to authorize, if required, the reduction and offset against the Holdback Cash Consideration the full amount of any Indemnified Loss in favor of any Indemnified Party pursuant to Article X and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to receive and cause to be paid to Equityholders in accordance with Article II any distributions received by the Representative;
(vi) do to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Equityholder and/or of the Representative deems necessary arising out of or appropriate, under or in the sole discretion of the Representative, any manner relating to the subject matter hereof as fully and completely as this Agreement or any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;other Transaction Document; and
(vii) 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 Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (vi) above and the transactions contemplated in this Agreement and the other Transaction Documents. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of such Holderthe Equityholders, except as expressly provided herein and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any agreement ancillary agreement, schedule, exhibit or other document necessary or appropriate in connection with the transactions contemplated Disclosure Schedule. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by this Agreement; and
it to be genuine, and (viiiiii) make any representation or warranty reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Equityholder or other party. All actions taken by the Representative under this Agreement or the Representative Engagement Agreement shall be binding upon each Equityholder and such Holder necessary Equityholder’s successors as if expressly confirmed and ratified in writing by such Equityholder, and all defenses which may be available to any Equityholder to contest, negate or appropriate disaffirm the action of the Representative taken in connection with good faith under this Agreement or the transactions contemplated by this AgreementRepresentative Engagement Agreement are waived.
(b) The Parent, the Indemnified Parties, the Company and each of their Affiliates will be entitled to rely exclusively upon the communications of the Representative shall promptly provide written notice relating to each Holder the foregoing as the communications of any action taken the Equityholders. None of such Persons (a) need be concerned with the authority of the Representative to act on behalf of the Holders by all Equityholders hereunder, or (b) will be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated in such capacity. Any notices delivered to the Representative under this Section 18in connection with Article X hereof shall constitute notice to all Equityholders.
(c) The appointment grant of authority provided for in this Section 11.1 and the powers, immunities and rights to indemnification granted to the Representative shall be deemed Group hereunder (a) are coupled with an interest and shall are being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and will be binding on any successor thereto, and (b) will survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinHoldback Cash Consideration.
(d) Neither In the event that the authorized Representative nor hereunder shall resign, become unable to fulfill its agents shall be liable responsibilities pursuant to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case or otherwise fail to act on behalf of the Representative’s fraud Company or willful misconduct. The Holdersthe Equityholders for any reason, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident Equityholders whose Applicable Holdback Percentages immediately prior to the acceptance, performance or administration Effective Time constituted no less than fifty-one percent (51%) of the Representative’s duties under this Agreement, except in the case aggregate Applicable Holdback Percentages of fraud or willful misconduct in the performance of such duties. The all Equityholders shall promptly appoint a new Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses notify Parent of the Representative in connection with the fulfillment identity of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Sharesand contact information for such successor.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true agent of the Company Members and lawful agent the UAR Holders in connection with, and attorney-in-fact to facilitate the consummation of such Holder the transactions contemplated by, this Agreement and the other Transaction Documents, and in connection with full power of substitution the activities to act in the name, place and stead of such Holder with respect to the performance be performed on behalf of any such Holder under the terms and provisions hereof, and to do Company Members or refrain from doing all such further acts and things, and to execute all such documentsthe UAR Holders, as applicable, under this Agreement and the Representative Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article XIII and in the Escrow Agreement, which shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including include the full power toand authority:
(i) act for any to execute and deliver the Escrow Agreement (with such Holder with respect modifications or changes thereto as to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 on behalf of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article XI and this Article XIII;
(ii) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the 85 Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(iii) as the Representative of the Company Members and the UAR Holders, to enforce and protect the rights and interests of the Company Members and the UAR Holders, as applicable, and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement, and each other Transaction Document and, in connection therewith, to (A) resolve, on behalf of the Company Members, all questions, disputes, conflicts and controversies concerning (1) the determination of any amounts pursuant to Article II and (2) Indemnification Claims pursuant to Article XI; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Company Members or the UAR Holders, as applicable, in connection with Article II and Article XI and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Company Members or the UAR Holders, as applicable; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Pioneer Parent or Pioneer Investment, or any other Person, against the Representative, the Aggregate Escrow Amount, and following the Closing receive and process on behalf any or all Company Members or UAR Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Company Members or UAR Holders, as applicable, with respect to any such claim, action, proceeding or investigation on behalf of the RepresentativeCompany Members; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary on behalf of the Company Members; (F) settle or compromise on behalf of the Company Members any claims asserted under Article II or Article XI or under the Escrow Agreement; (G) assume, on behalf of all of Company Members or UAR Holders, as applicable, the defense of any claim that is the basis of any claim asserted under Article II or Article XI or under the Escrow Agreement; and (H) on behalf of the Company Members, file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action;
(iv) to enforce payment of the Aggregate Escrow Amount and of any other amounts payable to the Company Members or the UAR Holders, in each case on behalf of Company Members or UAR Holders, as applicable;
(v) to authorize and cause to be paid out of the Aggregate Escrow Amount any amounts pursuant to this Agreement and the Escrow Agreement;
(vi) do to waive or refrain from doing enforcing any further act or deed on behalf right of any such Company Member, UAR Holder that or the Representative deems necessary arising out of or appropriate, under or in the sole discretion of the Representative, any manner relating to this Agreement, the subject matter hereof as fully and completely as Escrow Agreement or any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;other Transaction Document; and
(vii) to make, execute, on behalf of acknowledge and deliver all such Holderother agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any agreement or other document and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in clauses (i) through (vi) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with , the transactions contemplated by this AgreementEscrow Agreement and the other Transaction Documents.
(b) The Pioneer Parent, Pioneer Investment the Company, the Surviving Entity and their respective subsidiaries and Affiliates shall be entitled to rely exclusively and conclusively upon the communications of the Representative shall promptly provide written notice relating to each Holder the foregoing as the communications, actions and omissions of the Company Members or UAR Holders, as applicable. Neither Pioneer Parent, Pioneer Investment nor the Company (A) are required to make any action taken inquiry or investigation regarding the authority of the Representative to act on behalf of the all Company Members and UAR Holders by hereunder, or (B) shall be held liable or accountable in any manner for any communications, actions or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(c) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that (i) the Representative may not enter into or grant any amendments or modifications described in Section 13.1(a)(i) or waivers or consents described in Section 13.1(a)(ii) unless such amendments, modifications, waivers or consents shall affect, as applicable, (A) each Company Member similarly and to the same relative extent and (B) each UAR Holder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Company Member or UAR Holder, as applicable, similarly and to the same relative extent as it affects other Company Members or UAR Holders, as applicable, must be executed by such Company Member or UAR Holder, as applicable, to be binding on such Company Member or UAR Holder, as applicable. The appointment provisions of this paragraph shall not limit the ability of Pioneer Parent, Pioneer Investment, the Company, the Surviving Entity and their respective subsidiaries and Affiliates to rely exclusively and conclusively upon the communications, actions and omissions of the Representative shall be deemed with respect to the matters provided herein.
(d) The grant of authority provided for in this Section 13.1 (i) is coupled with an interest and is being granted, in part, as an inducement to the Company, Pioneer Parent and Pioneer Investment to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Company Members or UAR Holders and shall be binding on any successor thereto, and (ii) shall survive any other person or entity distribution from the Escrow Account. The Pioneer Parties and the Surviving Entity may conclusively and absolutely rely, without inquiry, upon any instruction, decision or action of the Representative as the act of each Holder in all matters where the Representative is referred to herein.
herein or in any Transaction Document, and no Company Member nor any other Person shall have any cause of action against any Pioneer Party or the Surviving Entity (dand neither Pioneer Party nor the Surviving Entity shall have any liability) Neither the Representative nor its agents shall be liable for or relating to any Holder action taken (or any other person omission) in reliance upon instructions, decisions or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case actions of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counselresign at any time, independent public accountants and other experts selected by itsubject to the prior appointment of a successor Representative reasonably acceptable to Pioneer Parent or Pioneer Investment; provided, and will not however, that no such resignation shall be liable for any action taken or omitted to be taken in good faith effective until a new representative has been appointed by the Representative in accordance with the advice of Company Members and such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Sharesappointment is effective.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative is hereby agrees appointed, authorized and empowered to accept such appointment act as a representative, for the benefit of the Escrow Participants, as the true and lawful exclusive agent and attorney-in-fact of such Holder with full power of substitution to act in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofPersons, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction and to facilitate the consummation of the transactions contemplated hereunderhereby, including pursuant to the Escrow Agreement, which shall include the power toand authority:
(i) act for any to execute and deliver the Escrow Agreement (with such Holder with respect modifications or changes therein as to which the Representative, in its Ownership Interest Sharesole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Representative, in its sale discretion, determines to be desirable;
(ii) accept any notices to execute and communications pursuant to Section 19 on behalf deliver such waivers and consents in connection with this Agreement and the Escrow Agreement and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain transactions contemplated hereby and rely upon the advice of legal counsel, accountants and other professional advisors thereby as the Representative, in its sole discretion, deems may deem necessary or advisable in desirable;
(iii) to collect and receive all moneys and other proceeds and property payable to Representative from the performance Escrow Account as described herein, and, subject to any applicable withholding retention Laws and net of any out-of-pocket expenses incurred by the Representative (including any Seller Expenses paid by the Representative), the Representative shall disburse and pay the same to each of the duties Escrow Participants in a manner consistent with the provisions hereof;
(iv) to equitably adjust the Escrow Allocation Percentage and/or Cap Allocation Percentage of any particular Escrow Participant as a result of the payment of Losses;
(v) as the Representative, to enforce and protect the rights and interests of the Escrow Participants (including the Representative, in its capacity as a Stockholder) arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including, without limitation, in connection with any and all claims for indemnification brought under ARTICLE VIII), and to take any and all actions which the Representative believes are necessary or appropriate under the Escrow Agreement and/or this Agreement for and on behalf of the Escrow Participants, including asserting or pursuing any claim against Parent, Merger Sub and/or the Surviving Entity, defending any Third Party Claims or claims by the Parent Indemnified Persons, consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Entity and their respective representatives regarding such claims;
(vi) do or to refrain from doing enforcing any further act or deed on behalf right of any such Holder that Escrow Participant and/or the Representative deems necessary arising out of or appropriateunder or in any manner relating to this Agreement, the Escrow Agreement or any other agreement, instrument or document in connection with the sole discretion foregoing; provided, however, that no such failure to act on the part of the Representative, relating to except as otherwise provided in this Agreement or in the subject matter hereof as fully and completely as Escrow Agreement, shall be deemed a waiver of any such Holder could do if personally present and acting and as though any reference to right or interest by the Representative or by such Holder herein was a reference to Escrow Participant unless such waiver is in writing signed by the waiving party or by the Representative;; and
(vii) to make, execute, on behalf of acknowledge and deliver all such Holderother agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any agreement or other document and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or appropriate proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; and
(viii) make any representation , the Escrow Agreement, and all other agreements, documents or warranty on behalf of such Holder necessary instruments referred to herein or appropriate therein or executed in connection with the transactions contemplated by this Agreementherewith and therewith.
(b) The Representative shall promptly provide written notice not be entitled to each Holder any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the payment of all its expenses (including attorneys’ fees) incurred as the Representative. The Representative may from time to time submit invoices to the Escrow Participants covering such expenses and, upon the request of any action taken on behalf Escrow Participant, shall provide such Escrow Participant with an accounting of all expenses paid. In addition to any other rights or remedies, the Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Representative against any amounts to be distributed to the Escrow Participants pursuant to Section 1.3(c). In connection with this Agreement, the Escrow Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the Holders powers conferred upon the Representative hereunder (i) the Representative shall incur no responsibility whatsoever to any Escrow Participant by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with the Escrow Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct and (ii) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to liability to any Escrow Participant. Each Escrow Participant shall indemnify, pro rata based upon the consideration received by such Escrow Participant hereunder, the Representative against all Losses arising out of or in connection with any Proceeding, relating to the acts or omissions of the Representative hereunder, or under the Escrow Agreement or otherwise in its capacity as the Representative. The foregoing indemnification shall not apply in the event of any Proceeding which finally adjudicates the liability of the Representative hereunder for its gross negligence or willful misconduct.
(c) All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the Closing Date and/or any termination of this Agreement and/or the Escrow Agreement.
(d) Parent and the Surviving Entity shall have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement and the authority delegated to Escrow Agreement, all of which actions or omissions shall be legally binding upon the Representative under this Section 18Stockholders.
(ce) The appointment grant of the Representative shall be deemed authority provided for herein (i) is coupled with an interest and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Stockholder, and (ii) shall survive the consummation of the Merger.
(f) The Representative may resign from its capacity as Representative at any other person or entity may conclusively and absolutely rely, without inquiry, upon time by written notice delivered to Parent. If there is a vacancy at any action time in the position of the Representative as for any reason, such vacancy shall be filled by an Escrow Participant vote in the act form of each Holder in all matters a writing executed by the Escrow Participants entitled to a majority of the number of votes referred to herein.
(d) Neither in the Representative nor its agents next sentence. In such event, each Escrow Participant shall have a number of votes equal to such Escrow Participant’s Escrow Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case binding on all of the Representative’s fraud or willful misconduct. The Holders, severally Escrow Participants and not jointly, shall indemnify, reimburse, defend and hold harmless constitute the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration authorization of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesEscrow Participants.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Authorization of the Representative. (a) As a condition to receiving the Closing Per Share Merger Consideration, each Holder of the Securityholders (other than holders of Dissenting Shares) shall irrevocably constitute and appoint agree in a Letter of Transmittal or other documentation acceptable to Parent to be bound by (i) the Representative. The provisions of this Agreement, (ii) the Escrow Agreement, (iii) the appointment of the Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Holder with full holder for the purposes of Article II and Article X and the Escrow Agreement, and (iv) the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement, including the exercise of the power to authorize delivery to any Parent Back to Contents Indemnified Person of substitution cash out of the Escrow Account in satisfaction of claims by any Parent Indemnified Person pursuant to this Agreement. The Representative hereby is appointed, authorized and empowered to act as the agent of the Securityholders in connection with, and to facilitate the nameconsummation of the transactions contemplated by, place this Agreement and stead of such Holder the other Transaction Documents, and in connection with respect the activities to the performance be performed on behalf of any such Holder the Securityholders under this Agreement and the terms Escrow Agreement, for the purposes and provisions hereofwith the powers and authority hereinafter set forth in this Article XII and in the Escrow Agreement, which shall include the full power and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power toauthority:
(i) act for any to execute and deliver the Escrow Agreement (with such Holder with respect modifications or changes thereto as to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 on behalf of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article X and this Article XII;
(ii) to take such actions and to execute and deliver such waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(iii) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (1) the determination of any amounts (including Closing Merger Consideration, Closing Per Share Merger Consideration, Closing Working Capital, Final Working Capital, Option Consideration, Per Share Escrow Distribution Amount and Per Share Working Capital Distribution Amount) pursuant to Article II and (2) Parent Indemnification Claims pursuant to Article X, (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with Article II and Article X and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Securityholders, (C) assert or institute any claim, action, Proceeding or investigation, (D) investigate, defend, contest or litigate any claim, action, Proceeding or investigation initiated by Parent or the Merger Subsidiary, or any other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholders in any such claim, action, Proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Securityholders with respect to any such claim, action, Proceeding or investigation, (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary, (F) settle or compromise any claims asserted under Article II or Article X or under the Escrow Agreement, (G) assume, on behalf of all of the Securityholders, the defense of any claim that is the basis of any claim asserted under Article II or Article X or under the Escrow Agreement, and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, Proceedings or investigations, it being understood that the Back to Contents Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iv) to enforce payment from the Escrow Amount and of any other amounts payable to the Securityholders, in each case on behalf of the Securityholders, in the name of the Representative;
(v) to authorize and cause to be paid out of the Escrow Amount the full amount of any Parent Indemnification Claims in favor of any Parent Indemnified Person pursuant to Article X and also any other amounts to be paid out of the Escrow Amount pursuant to this Agreement and the Escrow Agreement;
(vi) do or refrain from doing to receive and cause to be paid to Securityholders in accordance with Article II any further act or deed on behalf of any such Holder escrow distributions received by the Representative, provided that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating may discharge such duty by requesting that such funds be paid directly to the subject matter hereof as fully Exchange Agent and completely as any requesting that the Exchange Agent make such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference distributions to the RepresentativeSecurityholders;
(vii) to waive or refrain from enforcing any right of the Securityholders or any of them and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(viii) to make, execute, on behalf of acknowledge and deliver all such Holderother agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any agreement or other document and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in subparagraphs (i) through (vii) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with , the transactions contemplated by this AgreementEscrow Agreement and the other Transaction Documents.
(b) The Parent, Merger Subsidiary, the Surviving Corporation and its Subsidiaries shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders, and such communications of the Representative shall promptly provide written notice be fully binding upon the Securityholders. None of Parent, Merger Subsidiary or the Surviving Corporation (i) need be concerned with the authority of the Representative to each Holder of any action taken act on behalf of the Holders by all Securityholders hereunder, or (ii) shall be held liable or accountable in any manner for any act or omission of the Representative pursuant to the authority delegated to the Representative under this Section 18in such capacity.
(c) The appointment of Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (i) the Representative may not enter into or grant any amendments or modifications described in Section 12.1(a)(i) or waivers or consents described in Section 12.1(a)(ii) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be deemed executed by such Securityholder to be binding on such Securityholder. Back to Contents
(d) The grant of authority provided for in this Section 12.1 (i) is coupled with an interest and is being granted, in part, as an inducement to the Company, Parent and Merger Subsidiary to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesEscrow Agent.
(e) The death If the Representative shall die, become disabled or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency otherwise be unable to fulfill his responsibilities as agent of the Representative (or Securityholders, then Xxxx X. Xxxxxx shall be appointed as a successor thereto). The provisions representative and shall become the “Representative” for purposes of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary dispositionArticle X, the laws of descent Escrow Agreement and distribution or otherwisethis Article XII.
Appears in 1 contract
Samples: Merger Agreement (Applera Corp)
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true and lawful agent and attorney-in-fact (mandatario) of such Holder with full power of substitution to act the Shareholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersShareholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article IX and in the Escrow Agreement, which shall include the full power and authority:
(a) to execute and deliver the Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes thereto as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiihis reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole his reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article VIII and this Article IX;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the Representative, in his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) as the Representative of the Shareholders, to enforce and protect the rights and interests of the Shareholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to Article II and (B) indemnification claims pursuant to Article VIII; (ii) employ such agents, consultants and professionals, to delegate authority to his agents, to take such actions and to execute such documents on behalf of the Shareholders in connection with Article II and Article VIII and the Escrow Agreement as the Representative, in his reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Shareholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Representative and/or the Escrow Account, and receive process on behalf of any or all Shareholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Shareholders with respect to any such claim, action, proceeding or investigation; (v) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (vi) settle or compromise any claims asserted under Article II or Article VIII or under the Escrow Agreement; (vii) assume, on behalf of all of Shareholders, the defense of any claim that is the basis of any claim asserted under Article II or Article VIII or under the Escrow Agreement; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action;
(d) to enforce payment from the Escrow Account and of any other amounts payable to Shareholders, in each case on behalf of Shareholders, in the name of the Representative;
(vie) do to authorize and cause to be paid out of the Escrow Account the full amount of any indemnification claims in favor of any Buyer Indemnitee pursuant to Article VIII and also any other amounts to be paid out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(f) to cause to be paid from the Escrow Account to the Shareholders in accordance with Article VIII any Escrow Distributions;
(g) to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Shareholder and/or of the Representative deems necessary arising out of or appropriateunder or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(h) 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 the sole discretion of general, to do any and all things and to take any and all action that the Representative, relating to the subject matter hereof as fully in his sole and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) executeabsolute direction, on behalf of such Holder, any agreement or other document may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (g) above and the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with , the transactions contemplated by this Agreement.
(b) Escrow Agreement and the other Transaction Documents. The Representative Buyer Parties shall promptly provide written notice be entitled to each Holder of any action taken on behalf of rely exclusively upon the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment communications of the Representative relating to the foregoing as the communications of the Shareholders. No Buyer Party shall be deemed held liable or accountable in any manner for any act or omission of the Representative in such capacity. The grant of authority provided for in this Section 9.01 (i) is coupled with an interest and is being granted, in part, as an inducement to the Seller Parties, Buyer Parties and the Representative to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Shareholders and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinEscrow Account.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger ConsiderationBy the execution and delivery of the Letter of Transmittal, each Effective Time Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Effective Time Holder with full power of substitution to act in the name, place and stead of such Effective Time Holder with respect to the performance on behalf of any such Effective Time Holder under the terms and provisions hereof, hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Effective Time Holder with respect to its Ownership Interest Share, any adjustments thereto or as otherwise specified herein, including preparing and producing to Parent an appropriate amendment to the Spreadsheet in accordance with Section 1.6(b);
(ii) accept any notices and communications pursuant to Section 19 9.1 on behalf of the Effective Time Holders, such that a notice or communication shall be deemed duly given to the Effective Time Holders upon delivery to or receipt by the Representative, in accordance with Section 199.1;
(iii) act for any such Effective Time Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Effective Time Holder;
(iv) act for any such Effective Time Holder with respect to the Final Working Capital and any adjustment and with respect to the Final Revenue Statement and Earn-Out Consideration;
(v) amend or waive any provision hereof in any manner;
(vvi) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Representative, in its sole discretion, deems necessary or advisable in the performance of the duties of the Representative;
(vivii) act for any such Effective Time Holder with respect to the termination provisions in accordance with Article 6; and
(viii) do or refrain from doing any further act or deed on behalf of any such Effective Time Holder that the Representative deems necessary or appropriate, in the sole discretion of the Representative, relating to the subject matter hereof as fully and completely as any such Effective Time Holder could do if personally present and acting and as though any reference to such Effective Time Holder herein was a reference to the Representative;
(vii) execute, on behalf of such Holder, any agreement or other document necessary or appropriate in connection with the transactions contemplated by this Agreement; and
(viii) make any representation or warranty on behalf of such Holder necessary or appropriate in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Effective Time Holder of any action taken on behalf of the Effective Time Holders by the Representative pursuant to the authority delegated to the Representative under this Section 188.1 and the Letters of Transmittal.
(c) The appointment of the Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Effective Time Holder in all matters referred to herein.
(d) Any vacancy in the position of the Representative may be filled by approval of the holders of at least 51% of the Ownership Interest Shares. In the event of such change, the new Representative shall promptly notify Parent and the Surviving Company of such change.
(e) Neither the Representative nor its agents shall be liable to any Effective Time Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Effective Time Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of his fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement (the “Expenses”) shall be borne by the Effective Time Holders, pro rata based on their Ownership Interest Shares, and the Representative shall be entitled to retain from the Representative Holdback Amount such Expenses. In the event the Expenses are less than the Representative Holdback Amount, the Representative shall disburse the remaining Representative Holdback Amount to the Effective Time Holders based on their respective Ownership Interest Share on the earlier to occur of (i) payment of the Earn-out Consideration, and (ii) September 30, 2014, unless at such time there remains in effect any Outstanding Escrow Claims or Claims with respect to Buyer Indemnified Taxes, in which case any disbursement will occur after such claims are resolved. In the event the aggregate amount of the Expenses exceeds the Representative Holdback Amount, the Representative, at its sole discretion, may be reimbursed an amount equal to the difference between the Representative Holdback Amount and the Expenses from either (i) the Earn-out Consideration, or (ii) the Effective Time Holders pro rata based on their Ownership Interest Shares.
(ef) The death or incapacity, or dissolution or other termination of existence, of any Effective Time Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 8.1 are binding upon the executors, heirs, legal representatives and successors of each Effective Time Holder, and any references in this Agreement to a Effective Time Holder or the Effective Time Holders means and includes successors to the Effective Time Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Solta Medical Inc)
Authorization of the Representative. Ardatrium L.L.C. (athe “Representative”) As a condition (and each successor appointed in accordance with Section 12.6), hereby is appointed, authorized and empowered to receiving Merger Considerationact, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees to accept such appointment as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 on behalf of the HoldersSecurityholder Parties, in connection with, and to facilitate the consummation of the transactions contemplated by, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Securityholder Parties under this Agreement and the Indemnification Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article 12 and in the Indemnification Escrow Agreement, which shall include the power and authority:
(a) To execute and deliver the Indemnification Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes therein as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, deems may deem necessary or advisable desirable to give effect to the matters set forth in the performance of the duties of the Representativethis Article 12;
(vib) do To execute and deliver such waivers and consents in connection with this Agreement and the consummation of the transactions contemplated hereby as the Representative, in its reasonable discretion, may deem necessary or refrain from doing desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) As the Representative of the Securityholder Parties, to enforce and protect the rights and interests of the Securityholder Parties and to enforce and protect the rights and interests of the Representative arising out of or under or in any further act manner relating to this Agreement, the Indemnification Escrow Agreement and each other Transaction Document (including, but not limited to, in connection with any and all claims for indemnification brought by any Indemnified Party under Article 11 of this Agreement) and, in connection therewith, to (i) assert by claim or deed institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by any Indemnified Party, or any other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholder Parties in any such Holder that claim, action, proceeding or investigation and compromise or settle on such terms as the Representative deems necessary or shall determine to be appropriate, in the sole discretion give receipts, releases and discharges on behalf of all of the Representative, relating Securityholder Parties with respect to the subject matter hereof as fully and completely as any such Holder could do if personally present claim, action, proceeding or investigation; (iii) file any proofs, debts, claims and acting and petitions as though the Representative may deem advisable or necessary; (iv) settle or compromise any reference to such Holder herein was a reference to the Representative;
claims asserted under Article 11 of this Agreement; (viiv) executeassume, on behalf of all of the Securityholder Parties, the defense of any claim that is the basis of any claim asserted under Article 11 of this Agreement; and (vi) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such Holderactions, and shall not have liability for any agreement failure to take such any action;
(d) to enforce payment from the Escrow Amount and any other amounts payable to the Securityholder Parties, in each case on behalf of the Securityholder Parties, in the name of the Representative or, if the Representative so elects, upon at least fifteen (15) days’ prior written notice to the Securityholder Parties and in the absence of written instructions to the contrary, in the names of one or more of the Securityholder Parties;
(e) to cause to be paid out of the Escrow Account the full amount of any judgment or judgments and legal interest and costs awarded in favor of any Buyer Indemnified Party arising out of the indemnification provisions set forth in Article 11 of this Agreement;
(f) to refrain from enforcing any right of the Securityholder Parties or any of them and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Indemnification Escrow Agreement or any other document Transaction Documents; and
(g) 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 Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (f) above and the transactions contemplated by this Agreement; and
, the Indemnification Escrow Agreement and the other Transaction Documents. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that (viiii) make the Representative may not enter into or grant any representation amendments or warranty modifications described in Section 12.1(a) or waivers or consents described in Section 12.1(b) unless such amendments, modifications, waivers or consents shall affect each Securityholder Party similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent which does not affect any Securityholder Party similarly and to the same relative extent as it affects other Securityholder Parties must be executed by such Securityholder Party to be binding on behalf such Securityholder Party. Notwithstanding anything to the contrary herein, the Representative in its role as Representative shall have no liability whatsoever to the Company, Parent, Sub or the Surviving Corporation, except to the extent arising as a result of fraud or the breach of this Agreement on the part of such Holder necessary or appropriate Representative. The grant of authority provided for in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Holder of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
12.1 (ci) The appointment of the Representative shall be deemed is coupled with an interest and is being granted, in part, as an inducement to the Company, Parent and Sub to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder Party and any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to binding on any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident successor thereto; (ii) subject to the acceptanceprovisions of Section 12.6 below, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith exercised by the Representative in accordance with the advice acting by signing as a Representative of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses each of the Representative in connection with Securityholder Parties; and (iii) shall survive any distribution from the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest SharesEscrow Agent.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true sole and lawful agent exclusive representative, agent, proxy and attorney-in-fact of such Holder Sellers, Seller Owners and the Hospitality Subsidiaries, and each of them, in connection with, and to facilitate the consummation of the transactions contemplated in, this Agreement and the other Ancillary Agreements, and in connection with full power of substitution the activities to act in the name, place and stead of such Holder with respect to the performance be performed on behalf of any such Holder Sellers and Seller Owners under this Agreement, for the terms purposes and provisions hereofwith the powers and authority hereinafter set forth in this Article 10, which will include the full power and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power toauthority:
(i) act for any to take such Holder actions and to execute and deliver such amendments, modifications, waivers and consents in connection with respect to its Ownership Interest Share;
(ii) accept any notices this Agreement and communications pursuant to Section 19 on behalf the Ancillary Agreements and the consummation of the Holders, such that a notice or communication shall be deemed duly given to the Holders upon delivery to or receipt by the Representative, in accordance with Section 19;
(iii) act for any such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain transactions contemplated herein and rely upon the advice of legal counsel, accountants and other professional advisors therein as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the Ancillary Agreements;
(ii) as the Representative of Sellers, Seller Owners and the Hospitality Subsidiaries, to enforce and protect the rights and interests of Sellers and Seller Owners and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each Ancillary Agreement and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to Article 2 and (y ) indemnification claims pursuant to Article 9; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of Sellers, Seller Owners and the Hospitality Subsidiaries in connection with Article 2 and Article 9 and the Ancillary Agreements as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of Sellers and Seller Owners; (C) assert or institute any Claim; (D) investigate, defend, contest or litigate any Claim initiated by any Buyer Party, any Indemnified Party, or any other Person, against the Representative and/or Sellers and Seller Owners, and receive process on behalf of any Seller and Seller Owner in any such Claim and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of both of Sellers and Seller Owners with respect to any such Claim; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under Article 2 or Article 9; (G) assume, on behalf of both of Sellers and Seller Owners, the defense of any claim that is the basis of any claim asserted under Article 2 or Article 9; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the duties foregoing Claims, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to Sellers and Seller Owners, in each case on behalf of Sellers and Seller Owners, in the name of the Representative;
(iv) to authorize, if required, the reduction and offset against the Holdback Cash Consideration the full amount of any Indemnified Loss in favor of any Indemnified Party pursuant to Article 9 and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to receive and cause to be paid to Sellers in accordance with Article 2 any distributions received by the Representative;
(vi) do to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Sellers, Seller Owners and the Hospitality Subsidiaries and/or of the Representative deems necessary arising out of or appropriate, under or in the sole discretion of the Representative, any manner relating to the subject matter hereof as fully and completely as this Agreement or any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) execute, on behalf of such Holder, any agreement or other document necessary or appropriate in connection with the transactions contemplated by this Ancillary Agreement; and
(viiivii) make 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 representation or warranty on behalf of such Holder and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (vii) above and the transactions contemplated by in this AgreementAgreement and the Ancillary Agreements.
(b) The Buyer Parties, the Indemnified Parties, the Seller Parties, the Hospitality Subsidiaries and each of their respective Affiliates will be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of Sellers, Seller Owners and the Hospitality Subsidiaries. None of such Persons (a) need be concerned with the authority of the Representative to act on behalf of Sellers, Seller Owners or the Hospitality Subsidiaries hereunder, or (b) will be held liable or accountable in any manner for any act or omission of the Representative in such capacity. Any notices delivered to the Representative in connection with Article 9 hereof shall promptly provide written constitute notice to each Holder of any action taken on behalf of Sellers, Seller Owners and the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18Hospitality Subsidiaries.
(c) The appointment grant of the Representative shall be deemed authority provided for in Section 10.1 (i) is coupled with an interest and shall is being granted, in part, as an inducement to the Seller Parties and the Buyer Parties to enter into this Agreement and will be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Seller, Seller Owner or Hospitality Subsidiary and will be binding on any successor thereto, and (ii) will survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinHoldback Cash Consideration.
(d) Neither In the event that the individual authorized hereunder as a Representative nor its agents shall be liable die, become incapacitated, resign, or otherwise fail to any Holder or any other person or entity act on behalf of Sellers, Seller Owners and the Hospitality Subsidiaries for any error of judgmentreason, Xxxxxx Xxxxxx shall serve as a replacement and if he refuses to serve or any action takenis otherwise unable to serve, suffered or omitted the Seller Owners who held immediately prior to be taken, under this Agreement, except in the case Closing no less than 51% of the Representative’s fraud or willful misconduct. The Holders, severally issued and not jointly, outstanding Seller Interests held by all Seller Owners shall indemnify, reimburse, defend promptly appoint a new Representative and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration notify Parent of the Representative’s duties under this Agreement, except in the case identity of fraud or willful misconduct in the performance of and contact information for such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Sharessuccessor.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act the Securityholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersSecurityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article X and in the Escrow Agreement, which shall include the full power and authority:
(a) to execute and deliver the Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes thereto as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article VIII and this Article X; Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to Article II and (B) Indemnification Claims pursuant to Article VIII; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with Article II and Article VIII and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties of Securityholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Representative;
(vi) do or refrain from doing any further act or deed , the Escrow Amount, and following the Closing receive process on behalf of any or all Securityholders in any such Holder that claim, action, proceeding or investigation and compromise or settle on such terms as the Representative deems necessary or shall determine to be appropriate, in the sole discretion give receipts, releases and discharges on behalf of the Representative, relating all of Securityholders with respect to the subject matter hereof as fully and completely as any such Holder could do if personally present claim, action, proceeding or investigation; (v) file any proofs, debts, claims and acting and petitions as though the Representative may deem advisable or necessary; (vi) settle or compromise any reference to such Holder herein was a reference to claims asserted under Article II or Article VIII or under the Representative;
Escrow Agreement; (vii) executeassume, on behalf of all of Securityholders, the defense of any claim that is the basis of any claim asserted under Article II or Article VIII or under the Escrow Agreement; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such Holderactions, and shall not have liability for any agreement failure to take such any action;
(d) to enforce payment from the Working Capital Escrow Amount and the Escrow Amount and of any other amounts payable to Securityholders, in each case on behalf of Securityholders;
(e) to authorize and cause to be paid out of the Escrow Amount the full amount of any Parent Indemnification Claims in favor of any Parent Indemnified Person pursuant to Article VIII and also any other amounts to be paid out of the Working Capital Escrow Amount and the Escrow Amount pursuant to this Agreement and the Escrow Agreement;
(f) to waive or refrain from enforcing any right of any Securityholder or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other document Transaction Document; and Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(g) 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 Representative, in its sole and absolute direction, may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (f) above and the transactions contemplated by this Agreement; and
, the Escrow Agreement and the other Transaction Documents. Parent, the Company, the Surviving Corporation and their respective Subsidiaries and Affiliates shall be entitled to rely exclusively and conclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders. Neither Parent nor the Company (viiii) are required to make any representation inquiry or warranty investigation regarding the authority of the Representative to act on behalf of such Holder necessary all Securityholders hereunder, or appropriate (ii) shall be held liable or accountable in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Holder of any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment manner for any act or omission of the Representative in such capacity. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (i) the Representative may not enter into or grant any amendments or modifications described in Section 10.1(a) or waivers or consents described in Section 10.1(b) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be deemed executed by such Securityholder to be binding on such Securityholder. The grant of authority provided for in this Section 10.1 (i) is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholders and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively distribution from the Working Capital Escrow Amount and absolutely rely, without inquiry, upon any action of the Representative as the act of each Holder in all matters referred to herein.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such dutiesEscrow Account. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for resign at any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Sharestime.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Authorization of the Representative. (a) As a condition to receiving Merger Consideration, each Holder shall irrevocably constitute and appoint the Representative. The Representative hereby agrees is appointed, authorized and empowered to accept such appointment act as the true and lawful agent and attorney-in-fact of such Holder with full power of substitution to act the Securityholders in the name, place and stead of such Holder with respect to the performance on behalf of any such Holder under the terms and provisions hereofconnection with, and to do or refrain from doing all such further acts facilitate the consummation of the transactions contemplated by, this Agreement and thingsthe other Transaction Documents, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for any such Holder with respect activities to its Ownership Interest Share;
(ii) accept any notices and communications pursuant to Section 19 be performed on behalf of the HoldersSecurityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this ARTICLE X and in the Escrow Agreement, which shall include the full power and authority:
(a) to execute and deliver the Escrow Agreement (with such that a notice modifications or communication shall be deemed duly given changes thereto as to the Holders upon delivery to or receipt by which the Representative, in accordance with Section 19;
(iiiits reasonable discretion, shall have consented to) act for any and to agree to such Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise amendments or settle any such claim on behalf of any such Holder;
(iv) amend or waive any provision hereof in any manner;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors modifications thereto as the Representative, in its sole reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in ARTICLE IX and this ARTICLE X;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(c) as the Representative of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to ARTICLE II and (B) indemnification claims pursuant to ARTICLE IX; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with ARTICLE II and ARTICLE IX and the Escrow Agreement as the Representative, in its reasonable discretion, deems necessary or advisable to be in the performance best interest of the duties Securityholders; (iii) assert or institute any claim, action, proceeding or investigation; (iv) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Representative and/or the Escrow Amount, and receive process on behalf of any or all Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Securityholders with respect to any such claim, action, proceeding or investigation; (v) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (vi) settle or compromise any claims asserted under ARTICLE II or ARTICLE IX or under the Escrow Agreement; (vii) assume, on behalf of all of Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE IX or under the Escrow Agreement; and (viii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(d) to enforce payment from the Escrow Account and of any other amounts payable to Securityholders, in each case on behalf of Securityholders, in the name of the Representative;
(vie) do to authorize and cause to be paid out of the Escrow Account the full amount of any indemnification claims in favor of any Parent Indemnified Person pursuant to ARTICLE X and also any other amounts to be paid out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(f) to cause to be paid of the Escrow Account to Securityholders in accordance with ARTICLE II any Escrow Distributions;
(g) to waive or refrain from doing enforcing any further act or deed on behalf right of any such Holder that Securityholder and/or of the Representative deems necessary arising out of or appropriateunder or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(h) 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 the sole discretion of general, to do any and all things and to take any and all action that the Representative, relating to the subject matter hereof as fully in its sole and completely as any such Holder could do if personally present and acting and as though any reference to such Holder herein was a reference to the Representative;
(vii) executeabsolute direction, on behalf of such Holder, any agreement or other document may consider necessary or appropriate proper or convenient in connection with or to carry out the activities described in paragraphs (a) through (g) above and the transactions contemplated by this Agreement; and
, the Escrow Agreement and the other Transaction Documents. Parent, Colorado Company and Delaware Company shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Securityholders. Neither Parent, Colorado Company nor Delaware Company (viiia) make any representation or warranty need be concerned with the authority of the Representative to act on behalf of such Holder necessary all Securityholders hereunder, or appropriate in connection with the transactions contemplated by this Agreement.
(b) The Representative shall promptly provide written notice to each Holder of be held liable or accountable in any action taken on behalf of the Holders by the Representative pursuant to the authority delegated to the Representative under this Section 18.
(c) The appointment manner for any act or omission of the Representative shall be deemed in such capacity. The grant of authority provided for in this Section 10.01 (i) is coupled with an interest and is being granted, in part, as an inducement to Colorado Company, Delaware Company, Parent and Merger Sub to enter into this Agreement and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholders and shall be binding on any successor thereto, and (ii) shall survive any other person or entity may conclusively and absolutely rely, without inquiry, upon any action of distribution from the Representative as the act of each Holder in all matters referred to hereinEscrow Account.
(d) Neither the Representative nor its agents shall be liable to any Holder or any other person or entity for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Representative’s fraud or willful misconduct. The Holders, severally and not jointly, shall indemnify, reimburse, defend and hold harmless the Representative from and against any and all Losses incurred in connection with, arising out of, resulting from or incident to the acceptance, performance or administration of the Representative’s duties under this Agreement, except in the case of fraud or willful misconduct in the performance of such duties. The Representative may consult with legal counsel, independent public accountants and other experts selected by it, and will not be liable for any action taken or omitted to be taken in good faith by the Representative in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Representative will not be required to exercise any discretion or take any action. All costs and expenses of the Representative in connection with the fulfillment of its obligations under this Agreement shall be borne by the Holders, pro rata based on their Ownership Interest Shares.
(e) The death or incapacity, or dissolution or other termination of existence, of any Holder does not terminate the authority and agency of the Representative (or successor thereto). The provisions of this Section 18 are binding upon the executors, heirs, legal representatives and successors of each Holder, and any references in this Agreement to a Holder or the Holders means and includes successors to the Holders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
