Equityholder Representative. (a) Each SFC Equityholder, by virtue of his, her or its execution and delivery of this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative and as the agent, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder with full power of substitution, to act in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative. (b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders. (c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder. (d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests. (e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided. (f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period. (g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communications.
Appears in 2 contracts
Samples: Merger Agreement (Navarre Corp /Mn/), Merger Agreement (Navarre Corp /Mn/)
Equityholder Representative. (a) Each SFC EquityholderThe Equityholder Representative shall have the power and authority to take any of the following actions on behalf of the Equityholders: (i) to give and receive notices, communications and consents under this Agreement (including the Closing Payment Certificate, the Pro Forma Initial Consideration Payout Spreadsheet and any Additional Payout Spreadsheet) and the Exchange Agent Agreement; (ii) to receive and facilitate distribution of payments pursuant to this Agreement and the Exchange Agent Agreement; (iii) to waive, modify or amend any provision of this Agreement and the Exchange Agent Agreement; (iv) to assert any claim or institute any Action; (v) in the Equityholder Representative’s sole discretion, to investigate, defend, contest or litigate any Action initiated by any Person against the Equityholder Representative or any Equityholder under this Agreement and the Exchange Agent Agreement, as the Equityholder Representative; (vi) in the Equityholder Representative’s sole discretion, to receive process on behalf of any Equityholder in any such Action; (vii) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other Third Party intermediaries with respect to any disputes arising under this Agreement and the Exchange Agent Agreement; (viii) in the Equityholder Representative’s sole discretion, to negotiate and enter into settlements with respect to any indemnification claims arising under this Agreement and the Exchange Agent Agreement; (ix) in the Equityholder Representative’s sole discretion, to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement and the Exchange Agent Agreement; (x) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, assignments, letters and other writings; and (xi) in the Equityholder Representative’s sole discretion, engage, at the Equityholders’ expense, attorneys, accountants, financial and other advisors, paying or exchange agents and other persons necessary or appropriate for the accomplishment of the foregoing, and, in general, to do any and all things and to take any and all action that the Equityholder Representative, in the Equityholder Representative’s sole discretion may be necessary or proper or convenient in connection with or to carry out the activities described in this Agreement and the Exchange Agent Agreement. All such actions taken by the Equityholder Representative shall be deemed to be facts ascertainable outside of this Agreement for purposes of calculating the Parent Merger Shares and/or any Additional Payments, as applicable, or for any other purpose hereunder, and shall be binding on all Equityholders. The Equityholders agree that, if deemed necessary by the Equityholder Representative, in his or her sole discretion, then the Equityholder Representative may request that Parent fund the Equityholder Representative Expense Fund with such additional funds as are necessary to return the balance in the Equityholder Representative Expense Fund to the Equityholder Representative Expense Amount, with such amounts to be deducted from any unpaid Earnout Consideration, after any applicable offset under ARTICLE IX, by virtue of his, her providing written instruction to Parent (with simultaneous written notice to the Equityholders) to transfer the applicable amount to the Equityholder Representative Expense Fund by wire transfer or its execution and delivery of immediately available funds. Parent shall have no Liability to any Equityholder for any amount disbursed to the Equityholder Representative Expense Fund pursuant to this Section 8.01(a).
(b) By executing this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative hereby accepts such power and authority.
(c) In addition to and without limiting the power and authority of the Equityholder Representative to take actions on behalf of the Equityholders as set forth in Section 8.01(a), by executing or voting to approve this Agreement, and/or by executing and delivering a Joinder Agreement, each Equityholder shall be deemed to have irrevocably authorized, appointed and empowered the agentEquityholder Representative to be the exclusive proxy, representative, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder Equityholder, with full power of substitution, to make all decisions and determinations and to act in the nameand execute, place deliver and stead receive all documents, instruments and consents on behalf of such SFC Equityholder with respect to all matters under this Agreement Equityholder, at any time, in connection with, and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking that may be deemed by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken necessary or made by any SFC Equityholder under appropriate to accomplish the intent and implement the provisions of, this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that facilitate the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements consummation of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationshereby.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Equityholder Representative. (a) Each SFC EquityholderThe Equityholders, by virtue the approval and adoption of this Agreement, authorize the Equityholder Representative (i) to take all action necessary to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Equityholders may be required to indemnify the Purchaser Indemnified Parties pursuant to this Article 9, (ii) to give and receive all notices required to be given under this Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Equityholders by the terms of this Agreement.
(b) All decisions and actions by the Equityholder Representative, including, without limitation, any agreement between the Equityholder Representative and the Purchaser relating to the defense or settlement of any claims for which the Equityholders may be required to indemnify the Purchaser Indemnified Parties pursuant to this Article 9, shall be binding upon all of the Equityholders, and no Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Equityholder Representative shall have full power and authority on behalf of each Equityholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Equityholders under this Article 9.
(d) By his, her or its execution approval of the Transactions, each Equityholder agrees, in addition to the foregoing, that:
(i) the Purchaser Indemnified Parties shall be entitled to rely conclusively on the instructions and delivery decisions of this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative and as to (i) the agent, agent settlement of any claims for service of process and true and lawful attorney-in-fact of such SFC Equityholder with full power of substitution, to act in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking indemnification by the Equityholder Representative of Purchaser Indemnified Parties pursuant to this Article 9, or (ii) any and all other actions and the making of any decisions required or permitted to be taken by the Equityholder Representative hereunder, and no party hereunder shall have any cause of action against any of the Purchaser Indemnified Parties for any action taken by such Purchaser Indemnified Parties in reliance upon the instructions or decisions of the Equityholder Representative;
(ii) all actions, decisions and instructions of the Equityholder Representative shall be conclusive and binding upon all of the Equityholders and no Equityholder shall have any cause of action against the Equityholder Representative for any action taken, decision made or instruction given by any SFC the Equityholder Representative under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any except for proven fraud or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder willful misconduct by the Equityholder Representative in respect of such mattersconnection with the matters described in this Section 9.9, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If Equityholders shall indemnify the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to hold the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to harmless against any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter Losses arising out of or in connection with the acceptance or administration of his the Equityholder Representative’s duties hereunder hereunder;
(it being understood iii) the provisions of this Section 9.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any act done or omitted pursuant to Equityholder may have in connection with the advice transactions contemplated by this Agreement; and
(iv) remedies available at law for any breach of counsel the provisions of this Section 9.9 are inadequate; therefore, the Purchaser Indemnified Parties shall be conclusive evidence entitled to seek temporary and permanent injunctive relief without the necessity of such good faith). proving damages if Purchaser or the Equityholder Representative brings an action to enforce the provisions of this Section 9.9.
(e) The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of use the Equityholder Representative with respect Fund to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket pay all costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring or on behalf of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from such, including all costs and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, expenses incurred in connection with any dispute or claim with respect to the transactions contemplated hereby. The Equityholder Representative Fund will be held or disbursed, in whole or in part, as determined in good faith by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or therebyEquityholder Representative. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. Excess amounts (as a result of such firm representing determined in good faith by the Equityholder Representative as described from time to time) will be released by the Equityholder Representative to the Exchange Agent for distribution in accordance with the preceding sentence. In additionDistribution Schedule.
(f) The provisions of this Section 9.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, transferees, distributees and successors of each Equityholder, and any references in this Agreement to a Equityholder or the Equityholders shall mean and include the successors to the rights of Parentthe Equityholders hereunder, Merger Subwhether pursuant to testamentary disposition, the Company, the Surviving Corporation, Laws of descent and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company distribution or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationsotherwise.
Appears in 1 contract
Equityholder Representative. (a) Each SFC EquityholderMember hereby irrevocably constitutes, by virtue appoints and designates Shareholder Representative Service LLC, the Equityholder Representative, as of Closing as his, her or its execution and delivery of this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative and as the agent, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder fact, agent with full power of substitution, to act on behalf of each Member for all purposes in connection with this Agreement and any related agreements and to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the nameconsummation of the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder, place including: (i) authorizing payments under or pursuant to this Agreement or the Ancillary Agreements and stead authorizing disbursements thereof to Members, as contemplated by this Agreement or the Ancillary Agreements; (ii) receiving and forwarding of such SFC notices and communications pursuant to this Agreement or any Ancillary Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all Members, any and all consents, waivers and amendments deemed by the Equityholder Representative, in its good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (iv) authorize any payments required to be made by the Members pursuant to this Agreement; and (v) with respect to any indemnification claims and all other matters arising under this Agreement or the Ancillary Agreements after the Closing: (A) disputing or refraining from disputing, on behalf of each Member relative to any amounts to be received by the Members under this Agreement, the Ancillary Agreements or any agreements contemplated hereby and thereby, or any claim made by the Buyer Indemnified Parties under this Agreement or the Ancillary Agreements; (B) negotiating and compromising, on behalf of each Member, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement; and (C) executing, on behalf of each Member, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Member on the one hand and the Equityholder Representative on the other hand. The Equityholder Representative shall have the right to bind each Member as contemplated in this Agreement, and Acquiror, the Purchasers, the Acquiror Group and their Affiliates (and after the Closing, the Company and its Subsidiaries) shall be entitled to rely on the actions of such Equityholder Representative in connection with all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall includeproviding for such Equityholder Representative to act on behalf of any such Persons, without limitation, the taking including any allocation by the Equityholder Representative of Representative, without any and all actions and inquiry whatsoever. In the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise event of the power to: (i) executedeath, deliver, acknowledge, certify and file (in the name of any incapacity or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out resignation of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated herebyRepresentative, the execution thereof Members shall by vote of a majority of Membership Units, within thirty (30) days after such death, incapacity or resignation, appoint a substitute Equityholder Representative. In the event such Members do not so appoint a substitute Equityholder Representative within such period, Buyer shall be conclusive evidence entitled to petition, and the Members agree not to oppose, a court of competent jurisdiction in the State of Michigan to so appoint a substitute Equityholder Representative for such determination. Xxxx hereby accepts his appointment as the Equityholder Representativerepresentative.
(b) The power Each Member hereby acknowledges and agrees that the obligation of attorney granted in this Section 11.01; any of Acquiror, the Purchasers, the Acquiror Group and their Affiliates (iand after the Closing, the Company and its Subsidiaries) is coupled to make any payment to any of Member hereunder shall be fully discharged upon payment of such amount to the Paying Agent. None of Acquiror, the Purchasers, the Acquiror Group and their Affiliates (and after the Closing, the Company and its Subsidiaries) shall be liable to any Member for any act or omission of the Equityholder Representative with an interest and is irrevocable; (ii) may be delegated respect to any allocation by the Equityholder RepresentativeRepresentative to the Member, after 5 days’ notice without any obligation to Parent inquire of any such allocation by the Surviving Corporation Equityholder Representative on the part of the identity of Acquiror, the delegatePurchasers, the Acquiror Group and their Affiliates (and after the Closing, the Company and its Subsidiaries); and (iii) provided, that Equityholder Representative shall survive be able to rely in the death or incapacity of each of the SFC EquityholdersConsideration Spreadsheet in providing any post-Closing allocation.
(c) Notwithstanding anything Each Member hereby acknowledges and agrees that the obligation of any of Acquiror, the Purchasers, the Acquiror Group and their Affiliates (and after the Closing, the Company and its Subsidiaries) to make any payment to any of Member hereunder shall be fully discharged upon payment of such amount to the contrary contained in this Agreement, ParentEquityholder Representative. None of Acquiror, the Surviving CorporationPurchasers, the Acquiror Group and any NAVR Indemnified Parties their Affiliates (and after the Closing, the Company and its Subsidiaries) shall be entitled liable to deal exclusively any Member for any act or omission of the Equityholder Representative with respect to any payment or allocation by the Equityholder Representative to the Member, without any obligation to inquire of any such payment or allocation by the Equityholder Representative on all matters relating to this Agreementthe part of the Acquiror, includingthe Purchasers, without limitationthe Acquiror Group and their Affiliates (and after the Closing, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 the Company and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholderits Subsidiaries).
(d) The Equityholder Representative may at will incur no liability in connection with its services pursuant to this Agreement and any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein related agreements except to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his servicesextent resulting from its gross negligence or willful misconduct. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done action or omitted hereunder as omission pursuant to the advice of counsel. The Members shall indemnify the Equityholder Representative while acting in good faith against any reasonable, documented, and in the exercise of his reasonable business judgment with respect to any matter out-of-pocket losses, liabilities and expenses (“Equityholder Representative Expenses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Equityholder Representative Expense is suffered or incurred; provided, that in the acceptance or administration of his duties hereunder (it being understood event that any act done such Equityholder Representative Expense is finally adjudicated to have been caused by the fraud, gross negligence or omitted pursuant willful misconduct of the Equityholder Representative, the Equityholder Representative will reimburse the Members the amount of such indemnified Equityholder Representative Expense to the advice extent attributable to such gross negligence or willful misconduct. Equityholder Representative Expenses may be recovered by the Equityholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Members under this Agreement at such time as such amounts would otherwise be distributable to the Members; provided, that while the Equityholder Representative may be paid from the aforementioned sources of counsel shall funds, this does not relieve the Members from their obligation to promptly pay such Equityholder Representative Expenses as they are suffered or incurred. In no event will the Equityholder Representative be conclusive evidence required to advance its own funds on behalf of such good faith)the Members or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Members set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholder Representative or the termination of this Agreement. The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, act for the Members on all of the matters set forth in each case this Agreement and any Ancillary Agreement in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of manner the Equityholder Representative believes to be in the best interest of the Members as a whole and consistent with respect its obligations under this Agreement and any Ancillary Agreement.
(e) Upon the Closing, the Company will wire $50,000.00 (the “Expense Fund”) to the Equityholder Representative, which will be used for any matter arising out of expenses incurred by the Equityholder Representative. The Members will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Equityholder Representative any ownership right that they may otherwise have had in connection with the acceptance any such interest or administration of his duties hereunderearnings. The Equityholder Representative shall be entitled will hold these funds separate from its corporate funds and will not voluntarily make these funds available to recover from each SFC Equityholder, its creditors in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by event of bankruptcy. As soon as practicable following the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out completion of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including’s responsibilities, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have deliver any obligation remaining balance of the Expense Fund to provide any such written report the Paying Agent for further distribution to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Subthe Members. For tax purposes, the Company, Expense Fund will be treated as having been received and voluntarily set aside by the Surviving Corporation, Members at the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver time of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communications.
Appears in 1 contract
Samples: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Equityholder Representative. (a) Each SFC Equityholder, by By virtue of histhe executing and delivering this Agreement or an effective joinder hereto, her or its each of the Equityholders shall have irrevocably constituted and appointed, upon the Closing (and by execution and delivery of this AgreementAgreement as Equityholder Representative, Qualgro Partners Pte. Ltd. hereby irrevocably nominates, constitutes and appoints Xxxx accepts appointment) as the Equityholder Representative and as the agent, agent for service of process and true exclusive and lawful agent and attorney-in-fact (the “Equityholder Representative”) of such SFC the Equityholders for all purposes under this Agreement, including for the purposes of (a) making, litigating, arbitrating, resolving, settling, waiving or compromising any claim under or in connection with this Agreement, (b) giving and receiving notices and communications under this Agreement or in respect of any claims, (c) executing and delivering all documents necessary or desirable to carry out the foregoing, and (d) taking all other actions, or refraining from taking any action, necessary or appropriate in the good faith judgment of the Equityholder with full power Representative for the accomplishment of substitutionthe foregoing.
(b) The Equityholder Representative shall have and may exercise all of the powers conferred upon it pursuant to this Agreement, including:
(i) to act in for the name, place and stead of such SFC Equityholder Equityholders with respect regard to all matters under pertaining to indemnification referred to in this Agreement Agreement, including the power to compromise and settle any indemnity claim on behalf of the Equityholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking by the Equityholder Representative of any ;
(iii) to execute and deliver all actions amendments and the making of any decisions required or permitted waivers to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions Agreement that the Equityholder Representative maydeems necessary or appropriate, whether prior to, at or after the Closing;
(iv) the power to consult with, engage and rely on any accountants or advisors retained and other experts, including legal counsel, selected by it, (subject to Section 12.01(e)) solely at the cost and expense of the Sellers;
(v) the power to review, negotiate and agree the calculation and determination of any post-Closing adjustments under Section 2.02(b);
(vi) to receive funds for the payment of expenses of the Equityholders and apply such funds in his sole discretion, determine payment for such expenses;
(vii) the power to be necessary, desirable waive any terms and conditions of this Agreement providing rights or benefits to the Sellers in accordance with the terms hereof and in the manner provided herein;
(viii) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Equityholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(ix) to receive service of process in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications claims under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the The Equityholder Representative on all matters relating to shall not have by reason of this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, Agreement or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative otherwise a fiduciary relationship in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) Upon receipt or notice of any Third Party Claim pursuant to Section 11.06, the Equityholder Representative shall give prompt notice of the amount and details thereof (to the extent of the information in its possession) to the relevant Equityholder or Equityholders.
(e) Buyer, the Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Equityholder Representative in all matters referred to herein. The Equityholder Representative may at any time designate a replacement shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Equityholder Representative believes to be in the best interest of all of the Equityholders, taken as a whole, and consistent with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of obligations under this Agreement, hereby consents but the Equityholder Representative shall not be responsible to such replacement Equityholder Representativethe Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damages arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement. If the Equityholder Representative shall die, become disabled or otherwise be unable or unwilling to fulfill his responsibilities as representative serve in such capacity, its successor who shall serve and exercise the powers of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative under this Agreement and the Escrow Agreement shall be deemed to refer to the SFC appointed by a written instrument signed by Equityholders holding at least a majority of the Percentage Interests.
outstanding Shares (eon an as converted to ordinary share basis) No bond shall be required as of immediately prior to the Closing. In the event of removal or replacement of the Equityholder Representative, the Sellers must be provided prompt written notice of such replacement, including the contact and the notice information for such newly appointed Equityholder Representative shall receive no compensation for his services. Representative.
(f) The Equityholder Representative shall not be personally liable as the Equityholder Representative to any SFC Equityholder for any act done or omitted hereunder under this Agreement and the Escrow Agreement as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to judgment. The Equityholders shall severally (but not jointly or jointly and severally) indemnify the Equityholder Representative and hold the Equityholder Representative harmless against any matter Damages incurred and arising out of or in connection with the acceptance or administration of his the Equityholder Representative’s duties hereunder under this Agreement and the Escrow Agreement.
(it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). g) The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of serve as the Equityholder Representative with respect to any matter arising out of or in connection with without compensation, provided that the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled use the Equityholder Representative Expense Account to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, pay any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith fulfilling its obligations under this Agreement and the Escrow Agreement. Each of the Equityholders agree that, in connection with actions taken the event that the Equityholder Representative Expense Account is depleted prior to the obligations of the Equityholder Representative under this Agreement and the Escrow Agreement being completed, such Equityholder agrees to reimburse the Equityholder Representative for such Equityholder’s Pro Rata Share of all reasonable documented out-of-pocket expenses incurred by the Equityholder Representative pursuant to in the performance of its duties under this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount)Escrow Agreement. The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, distribute any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any remaining balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted Expense Account to the SFC Equityholders in accordance with their Percentage Interests. The upon completion by the Equityholder Representative willof its duties under this Agreement and the Escrow Agreement. Any such distributions from the Equityholder Representative Expense Account shall be paid to the Equityholders, if so requested in writing by any SFC with equal priority and pro rata based on each such Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out ’s Pro Rata Share of the Equityholder Representative Holdback Amount; providedExpense Account, however, that up to the aggregate total amount the Buyer originally deposited in the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month periodExpense Account.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communications.
Appears in 1 contract
Equityholder Representative. (a) Each SFC EquityholderBy execution hereof, by virtue of hiseach Equityholder appoints and designates Jon X. Xxtlxx xx its, his or her or its execution and delivery of representative under this AgreementAgreement (hereafter referred to, hereby irrevocably nominatesin such capacity, constitutes and appoints Xxxx together with any successor appointed pursuant to Section 11.18(e), as the "Equityholder Representative and Representative"), with full power of substitution as the agent, agent for service of process and such Equityholder's true and lawful agent and attorney-in-fact of such SFC Equityholder with full power of substitution, to act and authority in the such Equityholder's name, place and stead of (i) to execute such SFC documents and take such actions as such Equityholder Representative, in his sole discretion, deems necessary or advisable in connection with investigating or defending any claim for indemnification or any third party claim for which indemnification is sought hereunder, other than claims brought under Sections 3.1 and 3.2 hereof or claims with respect to all matters under this Agreement any Liability of Newco for Taxes payable by Newco, including the execution of any settlement agreements and releases for and on behalf of the Equityholders, (ii) to execute such documents and take such actions as such Equityholder Representative, in his sole discretion, deems necessary or advisable in connection with the preparation of the Statement of Tangible Net Book Value and the transactions contemplated resolution of any dispute relating thereto, (iii) to execute such documents and take such actions as such Equityholder Representative, in his sole discretion deems necessary or advisable in connection with carrying out the provisions of Section 6.10 hereof except with respect to Newco and Taxes payable by this Agreement. Such powers shall includeit, and (iv) to execute, swear to, acknowledge, deliver, file and record in the appropriate public offices all certificates, documents and other instruments (including, without limitation, the taking by this Agreement and any amendments thereto) which the Equityholder Representative deems appropriate or necessary in the exercise of his authority above. By execution hereof, each Newco Shareholder other than Carlyle Partners 70 72 II, L.P. appoints and designates Carlyle Partners II, L.P., with full power of substitution as such Newco Shareholder's true and lawful agent and attorney-in-fact with full power and authority in such Newco Shareholder's name, place and stead to: (A) negotiate, determine and settle all matters arising under this Agreement or in connection with any and all actions and the making of document related hereto, including without limitation any decisions action required or permitted to be taken by the Newco Shareholders or made by any SFC Equityholder of them under, or the resolution of any dispute or other matter arising under this Agreement; (B) represent each Newco Shareholder at the Closing and in connection with all transactions contemplated hereby; and (C) execute, including on behalf of such Newco Shareholder, any closing certificates, any side letters and agreements and any waivers of this Agreement or any agreements contemplated hereby which Carlyle Partners II, L.P., in its sole discretion, deems necessary or advisable for the exercise purpose of effectuating the transactions contemplated hereby. By execution hereof, each Equityholder other than the Newco Shareholders further appoints and designates the Equityholder Representative, with full power of substitution as such Equityholder's true and lawful agent and attorney-in-fact with full power and authority in such Equityholder's name, place and stead to: (iA) negotiate, determine and settle all matters arising under this Agreement or in connection with any document related hereto, including without limitation any action required or permitted to be taken by the Equityholders or any of them under, or the resolution of any dispute or other matter arising under this Agreement; (B) represent each Equityholder at the Closing and in connection with all transactions contemplated hereby; and (C) execute, deliver, acknowledge, certify and file (in the name of any or all on behalf of such SFC Equityholders Equityholder, any closing certificates, any side letters and agreements and any waivers of this Agreement or otherwise) any and all documents and to take any and all actions that the agreements contemplated hereby which such Equityholder Representative mayRepresentative, in his sole discretion, determine deems necessary or advisable for the purpose of effectuating the transactions contemplated hereby. Notwithstanding anything to be necessarythe contrary herein, desirable or appropriate in connection with any matter covered in Section 2.06however, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; shall not have the power to take any action or actions which would require payments which, in the aggregate, exceed $5,000,000 other than those contemplated by this Agreement and (iv) execute amendments (and additional the documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated herebyhereto. In his capacity as such, the execution thereof Equityholder Representative shall be conclusive evidence accord all of such determination. Xxxx hereby accepts his appointment the Equityholders equal treatment, except to the extent otherwise appropriate to reflect the differing rights and interests of the Selling Members, the Newco Shareholders and the Optionholders, each considered as the Equityholder Representativea class.
(b) The power By their execution of attorney granted in this Section 11.01; Agreement, the Equityholders shall be deemed to have agreed that (i) is the provisions of this Section 11.18 are independent and severable, are irrevocable and coupled with an interest and is irrevocable; (ii) may shall survive and not be delegated affected by the subsequent death, incompetency, disability, incapacity, dissolution or bankruptcy of such Equityholder Representativeand shall extend to such Equityholder's heirs, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; transferees, successors, assigns and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporationpersonal representatives, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the enforceable notwithstanding any rights or remedies any Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives the remedy at law for any breach of the provisions of this Section 11.18 would be inadequate, (iii) any Equityholder shall be entitled to temporary and all rights permanent injunctive relief without the necessity of proving damages if such Equityholder brings an action to obtain or otherwise control enforce the disclosure provisions of such communicationsthis Section 11.18, and (iiiiv) covenants any references in this Agreement to an Equityholder or the Equityholders shall mean and agrees not include the successor to assert any the rights whatsoever of the Equityholders hereunder. All decisions and actions by the Equityholder Representative shall be binding upon all of the Equityholders with respect to the matters set forth in Section 11.18(a), and no Equityholder shall have the right to object to, dissent from, protest or otherwise contest the same. Buyer shall not have the right to object to, protest or otherwise contest any such communications.matter related to the authority of the 71 73
Appears in 1 contract
Samples: Unit and Stock Purchase Agreement (Ducommun Inc /De/)
Equityholder Representative. (a) Each SFC EquityholderThe Equityholder Representative shall have the power and authority to take any of the following actions on behalf of the Equityholders: (i) to give and receive notices, communications and consents under this Agreement (including the Closing Payment Certificate, the Pro Forma Initial Consideration Payout Spreadsheet and any Additional Payout Spreadsheet) and the Exchange Agent Agreement; (ii) to receive and facilitate distribution of payments pursuant to this Agreement and the Exchange Agent Agreement; (iii) to waive, modify or amend any provision of this Agreement and the Exchange Agent Agreement; (iv) to assert any claim or institute any Action; (v) in the Equityholder Representative’s sole discretion, to investigate, defend, contest or litigate any Action initiated by any Person against the Equityholder Representative or any Equityholder under this Agreement and the Exchange Agent Agreement, as the Equityholder Representative; (vi) in the Equityholder Representative’s sole discretion, to receive process on behalf of any Equityholder in any such Action; (vii) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other Third Party intermediaries with respect to any disputes arising under this Agreement and the Exchange Agent Agreement; (viii) in the Equityholder Representative’s sole discretion, to negotiate and enter into settlements with respect to any indemnification claims arising under this Agreement and the Exchange Agent Agreement; (ix) in the Equityholder Representative’s sole discretion, to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement and the Exchange Agent Agreement; (x) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, assignments, letters and other writings; and (xi) in the Equityholder Representative’s sole discretion, engage, at the Equityholders’ expense, attorneys, accountants, financial and other advisors, paying or exchange agents and other persons necessary or appropriate for the accomplishment of the foregoing, and, in general, to do any and all things and to take any and all action that the Equityholder Representative, in the Equityholder Representative’s sole discretion may be necessary or proper or convenient in connection with or to carry out the activities described in this Agreement and the Exchange Agent Agreement. All such actions taken by the Equityholder Representative shall be deemed to be facts ascertainable outside of this Agreement for purposes of calculating the Parent Merger Shares and/or any Additional Payments, as applicable, or for any other purpose hereunder, and shall be binding on all Equityholders. The Equityholders agree that, if deemed necessary by the Equityholder Representative, in his or her sole discretion, then the Equityholder Representative may request that Parent fund the Equityholder Representative Expense Fund with such additional funds as are necessary to return the balance in the Equityholder Representative Expense Fund to the Equityholder Representative Expense Amount, with such amounts to be deducted from any unpaid Earnout Consideration, after any applicable offset under Article IX, by virtue of his, her providing written instruction to Parent (with simultaneous written notice to the Equityholders) to transfer the applicable amount to the Equityholder Representative Expense Fund by wire transfer or its execution and delivery of immediately available funds. Parent shall have no Liability to any Equityholder for any amount disbursed to the Equityholder Representative Expense Fund pursuant to this Section 8.01(a).
(b) By executing this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative hereby accepts such power and authority.
(c) In addition to and without limiting the power and authority of the Equityholder Representative to take actions on behalf of the Equityholders as set forth in Section 8.01(a), by executing or voting to approve this Agreement, and/or by executing and delivering a Joinder Agreement, each Equityholder shall be deemed to have irrevocably authorized, appointed and empowered the agentEquityholder Representative to be the exclusive proxy, representative, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder Equityholder, with full power of substitution, to make all decisions and determinations and to act in the nameand execute, place deliver and stead receive all documents, instruments and consents on behalf of such SFC Equityholder with respect to all matters under this Agreement Equityholder, at any time, in connection with, and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking that may be deemed by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken necessary or made by any SFC Equityholder under appropriate to accomplish the intent and implement the provisions of, this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that facilitate the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements consummation of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationshereby.
Appears in 1 contract
Equityholder Representative. (a) Each SFC Equityholder, by By virtue of histhe adoption of this Agreement and the approval of the Merger and the other transactions contemplated hereby by the Requisite Stockholder Approval, her or each of the Equityholders shall have irrevocably constituted and appointed, upon the Effective Time (and by its execution and delivery of this AgreementAgreement as Equityholder Representative, Fortis Advisors LLC hereby irrevocably nominates, constitutes and appoints Xxxx accepts its appointment) as the Equityholder Representative and as the agenttrue, agent for service of process and true exclusive and lawful agent and attorney-in-fact (the “Equityholder Representative”), of such SFC Equityholder with full power of substitution, the Equityholders receiving consideration hereunder to act in the name, place and stead of such SFC Equityholder the Equityholders in connection with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and 2.09, Section 2.10, Article X, the Escrow Agreement and each NAVR Indemnified Party the Equityholder Representative Engagement Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Equityholder Representative shall be entitled deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to deal exclusively act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Stockholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Equityholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Equityholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Equityholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Equityholder Representative shall have no obligation to act on behalf of the Equityholders, except as expressly provided herein, in the Escrow Agreement and in the Equityholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Equityholder Representative in respect of all such mattersany ancillary agreement, and each of them schedule, exhibit or the Company Disclosure Schedule. The Equityholder Representative shall be entitled to to: (A) rely conclusively upon the Consideration Spreadsheet, (without further evidence of B) rely upon any kind whatsoever) on any document executed or purported signature believed by it to be executed genuine, and (C) reasonably assume that a signatory has proper authorization to sign on behalf of any SFC the applicable Equityholder by or other party. The powers, immunities and rights to indemnification granted to the Equityholder Representative in respect hereunder: (y) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of such mattersany Equityholder and shall be binding on any successor thereto, and on (z) shall survive the delivery of an assignment by any other action taken Equityholder of the whole or purported to be taken on behalf any fraction of any SFC Equityholder by his, her or its interest in the Equityholder Representative, as fully binding upon such SFC EquityholderIndemnity Escrow Fund.
(db) The Equityholder Representative may resign at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not or may be unreasonably withheld, conditioned removed or delayed), and each SFC Equityholder, by virtue of his or her execution and replaced only upon delivery of this Agreementwritten notice to the Surviving Corporation by the Equityholders holding at least a majority of outstanding shares of Company Common Stock (on an as-converted to Company Common Stock basis) as of immediately prior to the Effective Time. Parent, hereby consents to such replacement Equityholder Representative. If the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Equityholder Representative shall die, become disabled or otherwise be unable in all matters referred to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his servicesherein. The Equityholder Representative shall not act for the Equityholders on all of the matters set forth in this Agreement in the manner the Equityholder Representative believes to be liable in the best interest of the Equityholders and consistent with the obligations under this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement, but neither the Equityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of this Advisory Group (collectively, the “Equityholder Representative Group”) shall be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damages arising from willful violation of the law or gross negligence or willful misconduct in the performance of its duties under this Agreement. All actions taken by the Equityholder Representative under this Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement shall be binding upon each Equityholder and such Equityholder’s successors as if expressly confirmed and ratified in writing by such Equityholder, and all defenses which may be available to any SFC Equityholder for to contest, negate or disaffirm the action of the Equityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement are waived.
(c) Certain Equityholders have entered into an engagement agreement (the “Equityholder Representative Engagement Agreement”) with the Equityholder Representative to provide direction to the Equityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement (such Equityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Equityholders shall indemnify, defend and hold harmless the Advisory Group from and against any act done and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or omitted hereunder as amounts paid in settlement (collectively, the “Equityholder Representative Expenses”) incurred by the Equityholders’ Representative while acting in good faith and in the exercise of his its reasonable business judgment with respect to any matter and arising out of or in connection with the acceptance or administration of his its duties hereunder (it being understood that under this Agreement, under the Escrow Agreement or under the Equityholder Representative Engagement Agreement. Such Equityholder Representative Expenses may be recovered first, from the Equityholder Expense Fund, second, from any act done distribution of the Indemnity Escrow Fund or omitted pursuant Milestone Payment otherwise distributable to the advice Equityholders at the time of counsel shall be conclusive evidence of such good faith)distribution, and third, directly from the Equityholders based on their respective Pro Rata Shares. The Equityholder Representative immunities and rights to indemnification shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability survive the resignation or expense incurred without gross negligence or willful misconduct on the part removal of the Equityholder Representative with respect to or any matter arising out member of or in connection with the acceptance or administration Advisory Group and the Closing and/or any termination of his duties hereunderthis Agreement and the Escrow Agreement. The Equityholders acknowledge that the Equityholder Representative shall not be entitled required to recover from each SFC Equityholderexpend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Equityholder Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Equityholder Representative shall not be required to take any action unless the Equityholder Representative has been provided with funds, security or indemnities which, in each case in accordance with such SFC Equityholder’s Percentage Interestits determination, any out-of-pocket costs are sufficient to protect the Equityholder Representative against the costs, expenses and expenses liabilities which may be reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken performing such actions.
(d) The Equityholder Expense Fund shall be held by the Equityholder Representative pursuant to this Agreement in a segregated client account and shall be used (including i) for the hiring purposes of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of paying directly or reimbursing the Equityholder Representative Holdback Amount). The for any Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly Expenses incurred pursuant to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Equityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Equityholder Expense Fund other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. than as a result of such firm representing the its gross negligence or willful misconduct. The Equityholder Representative is not acting as described a withholding agent or in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives any similar capacity in connection with the transactions contemplated by Equityholder Expense Fund, and has no tax reporting or otherwise arising under this Agreementincome distribution obligations. Subject to Advisory Group approval, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject Equityholder Representative may contribute funds to the sole and absolute control of Equityholder Expense Fund from any consideration otherwise distributable to the Equityholders. As soon as reasonably determined by the Equityholder RepresentativeRepresentative that the Equityholder Expense Fund is no longer required to be withheld, the Equityholder Representative shall distribute the remaining Equityholder Expense Fund (iiif any) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not Payment Agent for further distribution to assert any rights whatsoever with respect to any such communicationsthe Equityholders.
Appears in 1 contract
Equityholder Representative. (a) Each SFC EquityholderMember hereby irrevocably constitutes, by virtue of appoints and designates Member Representative SSB, LLC, the Equityholder Representative, as his, her or its execution and delivery of this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative and as the agent, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder fact, agent with full power of substitution, to act on behalf of each of the Member in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to this Agreement or the Ancillary Agreements and disbursements thereof to Members, as contemplated by this Agreement. Such powers shall includeAgreement or the Ancillary Agreements; (ii) receiving and forwarding of notices and communications pursuant to this Agreement or any Ancillary Agreement and accepting service of process; (iii) giving or agreeing to, without limitationon behalf of all Members, the taking any and all consents, waivers and amendments deemed by the Equityholder Representative Representative, in its good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (iv) making any payments required to be made pursuant to Section 2.5; (v) preparing and filing any Tax returns and amendments necessary for the Company or the Members post-Closing and making any payments or distributions related to Taxes; and (vi) with respect to any indemnification claims and all actions and other matters arising under this Agreement or the making Ancillary Agreements: (A) disputing or refraining from disputing, on behalf of each Member relative to any decisions required or permitted amounts to be taken or made received by any SFC Equityholder the Members under this Agreement, including the Ancillary Agreements or any agreements contemplated hereby and thereby, or any claim made by the Buyer Indemnified Parties under this Agreement or the Ancillary Agreements; (B) negotiating and compromising (prior to Closing), on behalf of each Member, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement; and (C) executing, on behalf of each Member, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Member on the power to: (i) execute, deliver, acknowledge, certify one hand and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative mayon the other hand. The Equityholder Representative shall have the right to bind each Member as contemplated in this Agreement, in his sole discretion, determine and the Buyer Indemnified Parties shall be entitled to be necessary, desirable or appropriate rely on the actions of such Equityholder Representative in connection with all matters under this Agreement providing for such Equityholder Representative to act on behalf of any matter covered in Section 2.06such Persons, Section 2.07including any payment or allocation by the Equityholder Representative, Section 2.08without any inquiry whatsoever. For the avoidance of doubt, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes the Equityholder Representative is appointed as each Member’s attorney-in-fact with respect to any such matters covered claims for indemnification by the Buyer and Buyer Indemnified Parties, as applicable, as set forth in Article VIII and Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under 7.6 of this Agreement; (iii) authorize . In the payment event of feesthe death, expenses and distributions including, without limitation, any fees, expenses incapacity or distributions out resignation of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated herebyRepresentative, the execution thereof Members shall by vote of a majority in interest of the Allocable Portions of all such Persons, within thirty (30) days after such death, incapacity or resignation, appoint a substitute Equityholder Representative. In the event such Members do not so appoint a substitute Equityholder Representative within such period, Buyer shall be conclusive evidence entitled to petition, and the Members agree not to oppose, a court of competent jurisdiction in the State of Michigan to so appoint a substitute Equityholder Representative for such determination. Xxxx hereby accepts his appointment as the Equityholder Representativerepresentative.
(b) The power of attorney granted in this Section 11.01; Each Member hereby agrees that: (i) in all matters in which action by the Equityholder Representative is required or permitted, the Equityholder Representative is authorized to act on behalf of such Member, notwithstanding any dispute or disagreement among the Members and any Buyer Indemnified Party shall be entitled to rely on any and all action taken or omitted by the Equityholder Representative under this Agreement without any liability to, or obligation to inquire of, any Member, notwithstanding any knowledge on the part of any Buyer Indemnified Party of any such dispute or disagreement; (ii) notice to the Equityholder Representative, delivered in the manner provided in Section 10.6, shall be deemed to be notice to each Member for the purposes of this Agreement; and (iii) the appointment of the Equityholder Representative is coupled with an interest and is irrevocable; (ii) may shall be delegated irrevocable by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death such Member in any manner or incapacity of each of the SFC Equityholdersfor any reason.
(c) Notwithstanding anything Each Member hereby acknowledges and agrees that the obligation of any of the Buyer Indemnified Parties to make any payment to any of the Member Indemnified Parties hereunder shall be fully discharged upon payment of such amount to the contrary contained in this AgreementEquityholder Representative. None of Buyer, Parent, the Surviving Corporation, and any NAVR of its Affiliates or any other Buyer Indemnified Parties shall be entitled liable to deal exclusively any Member Indemnified Party or any Member for any act or omission of the Equityholder Representative with respect to any payment or allocation by the Equityholder Representative to the Member Indemnified Parties, without any obligation to inquire of any such payment or allocation by the Equityholder Representative on all matters relating to this Agreementthe part of the Buyer, including, without limitation, Section 2.06, Section 2.07, Section 2.08, any of its Affiliate or Section 9.04 and Article X, and each NAVR any Buyer Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC EquityholderParty.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with shall act for the consent Members on all of the Parent (which will not be unreasonably withheld, conditioned or delayed), matters set forth in this Agreement and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If any Ancillary Agreement in the manner the Equityholder Representative shall die, become disabled or otherwise believes to be unable to fulfill his responsibilities as representative in the best interest of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint Members as a successor representative and, within five days thereafter, shall notify Parent whole and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes consistent with its obligations under this Agreement and any Ancillary Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to but the Equityholder Representative shall be deemed to refer is not liable or responsible to the SFC Equityholders holding a majority Members for any loss or damages it or they may suffer by reason of the Percentage Interests.
(e) No bond shall be required performance by the Equityholder Representative of its duties under this Agreement or any Ancillary Agreement, other than loss or damage arising from fraud by or gross negligence of the Equityholder Representative, . The Members shall indemnify (in accordance with their respective Indemnifiable Portions) and defend the Equityholder Representative shall receive no compensation for his services. The and hold the Equityholder Representative shall not be liable to harmless against any SFC Equityholder for any act done or omitted hereunder as damages incurred by the Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance acceptance, performance or administration of his the Equityholder Representative duties hereunder including the reasonable fees and expenses of any legal counsel, accountants, auditors and other advisors retained by the Equityholder Representative (it being understood collectively, the “Equityholder Representative Expenses”); provided that in the event that any act done such Equityholder Representative Expenses are finally adjudicated to have been directly caused by the gross negligence or omitted pursuant fraud of the Equityholder Representative, the Equityholder Representative will reimburse the Members the amount of such indemnified Equityholder Representative Expenses to the advice extent attributable to such gross negligence or fraud. All Equityholder Representative Expenses in excess of counsel the Equityholder Representative Expense Amount shall be conclusive evidence of such good faith)paid directly by the Members (in accordance with their respective Indemnifiable Portions) to the Equityholder Representative. The Equityholder Representative shall hold the Equityholder Representative Expense Amount paid to it at Closing to satisfy any obligations that may be entitled owed by the Members under this Agreement or otherwise in connection with the transactions contemplated hereby, or to be indemnified by each SFC Equityholdersatisfy any costs, expenses, Liabilities, Taxes or other amounts that the Equityholder Representative may incur in each case connection with acting in accordance with such SFC Equityholder’s Percentage Interests, for capacity under this Agreement and shall release any loss, liability or expense incurred without gross negligence or willful misconduct on the part remaining portion of the Equityholder Representative with respect Expense Amount to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Members when the Equityholder Representative shall deems it appropriate based on any reasonably foreseeable costs, expenses, Liabilities or other amounts that may be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring such capacity or on behalf of legal counsel and the incurring of legal fees and costs) (other than or in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month periodMembers.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communications.
Appears in 1 contract
Equityholder Representative. (a) Each SFC Equityholder, by By virtue of his, her or its execution and delivery the adoption of this AgreementAgreement by the Company Stockholder Approval, each of the Company Stockholders shall have irrevocably constituted and appointed, upon the Effective Time, Shareholder Representative Services LLC (and by his execution of this Agreement as Equityholder Representative, Shareholder Representative Services LLC hereby irrevocably nominates, constitutes and appoints Xxxx accepts its appointment) as the Equityholder Representative and as the agenttrue, agent for service of process and true exclusive and lawful agent and attorney-in-fact (the “Equityholder Representative”) of such SFC Equityholder with full power of substitution, the Equityholders to act in the name, place and stead of such SFC Equityholder the Equityholders in connection with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall include, without limitationin accordance with the terms and provisions of this Agreement, and to act on behalf of the taking by Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Equityholder Representative of any and all actions and shall deem necessary or appropriate in connection with the making of any decisions required or permitted to be taken or made transactions contemplated by any SFC Equityholder under this Agreement, including the exercise power, in each case, without having to seek or obtain the consent of the power to: any Person under any circumstance:
(i) executeto act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, deliver, acknowledge, certify and file (in including the name power to compromise any indemnity claim on behalf of any or all of such SFC the Equityholders or otherwise) any and all documents and to take any transact matters of litigation or other Proceedings;
(ii) to execute and deliver all actions amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Equityholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Equityholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter covered of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or connection with any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications claims under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest Equityholder Representative may resign at any time, and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ removed or replaced only upon delivery of written notice to Parent the Surviving Corporation by the Company Stockholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the identity Equityholder Representative in all matters referred to herein. The Equityholder Representative shall act for the Equityholders on all of the delegate; and (iii) shall survive matters set forth in this Agreement in the death or incapacity of each manner the Equityholder Representative believes to be in the best interest of the SFC EquityholdersEquityholders and consistent with the obligations under this Agreement, but the Equityholder Representative shall incur no liability of any kind with respect to any action or omission by it and will not be responsible to the Equityholders for any Damages the Equityholders may suffer in connection with its services pursuant to this Agreement, other than any liability or Damage arising from gross negligence, willful misconduct or bad faith in the performance of its duties under this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable for, and shall be indemnified, severally in proportion to any SFC Equityholder for any act done or omitted hereunder as their respective Pro Rata Shares and not jointly, by the Equityholders for, and to the extent available shall be entitled to draw against the Equityholder Representative while acting in good faith Expense Fund at any time and in from time to time for, any and all loss, liability, Damage, claim, penalty, fine, forfeiture, action, fee, cost and expense (including the exercise fees and expenses of his reasonable business judgment with respect to any matter counsel and experts and their staffs and all expense of document location, duplication and shipment) (“Representative Losses”) arising out of or in connection with the acceptance or administration of his its duties hereunder (it being understood under this Agreement and the Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event any act done such Representative Loss is finally adjudicated to have been primarily caused by the gross negligence, willful misconduct or omitted bad faith of the Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Losses attributable to such gross negligence, willful misconduct or bad faith. If not paid directly to the Equityholder Representative by the Equityholders or satisfied by the funds in the Equityholder Representative Expense Fund, any such Representative Losses may be recovered by the Equityholder Representative from the amounts in the Indemnity Escrow Fund otherwise distributable to the Equityholders pursuant to the advice terms hereof and the Escrow Agreement at the time of counsel distribution in accordance with written instructions delivered by the Equityholder Representative to the Escrow Agent; provided, that while this Section 11.01(c) allows the Equityholder Representative to be paid from the Indemnity Escrow Fund, this Section 11.01(c) shall be conclusive evidence of not relieve the Equityholders from their obligation to promptly pay such good faith)Representative Losses as such Representative Losses are suffered or incurred, nor shall it prevent the Equityholder Representative from seeking any remedies available to it at law or otherwise. The Equityholder Representative shall be entitled the administrator of the Equityholder Representative Expense Fund and shall have authority to draw against the Equityholder Representative Expense Fund (which shall be indemnified by each SFC Equityholder, in each case deposited with the Equityholder Representative at Closing) in accordance with such SFC Equityholder’s Percentage Interests, the preceding sentences of this Section 11.01(c). The Equityholders shall not receive interest or other earnings on amounts in the Equityholder Representative Expense Fund and the Equityholders irrevocably transfer and assign to the Equityholder Representative any ownership right that they may have in any interest that may accrue on amounts in the Equityholder Representative Expense Fund. The Equityholder Representative will not be liable for any loss, liability or expense incurred without loss of principal of the Equityholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct misconduct. As soon as reasonably practicable following the later to occur of (x) the date on the part which all indemnification claims of Indemnitees outstanding as of the Equityholder Representative with respect to Indemnity Expiration Date have been discharged in full and (y) the date on which all unsatisfied claims specified in any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholdervalid Officer’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative Claims Certificate pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of have been resolved, the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of will deliver the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted Expense Fund to the SFC Payment Agent for further distribution to the Equityholders in accordance with proportion to their Percentage Interestsrespective Pro Rata Escrow Shares. The Equityholder Representative willFor tax purposes, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that Expense Fund will be treated as having been received and voluntarily set aside by the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month periodEquityholders at the time of Closing.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communications.
Appears in 1 contract
Equityholder Representative. (a) Each SFC Equityholder, by virtue 10.15.1. As an integral component of his, her or its execution the terms and delivery conditions of this AgreementAgreement and the Merger, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative is hereby irrevocably constituted, appointed, authorized, directed and empowered, effective as of the Effective Time, to act as sole and exclusive agent, agent for service of process and true and lawful attorney-in-fact and representative of such SFC Equityholder the Equityholders, with full power of substitution, for all purposes in connection with this Agreement and each agreement ancillary hereto.
10.15.2. A decision, act, consent or instruction of the Equityholder Representative hereunder will constitute a decision, act, consent or instruction of all Equityholders and will be final, binding and conclusive upon each of such Equityholders, and the Escrow Agent, Payments Administrator, Parent, Merger Sub and Surviving Corporation may rely upon any such decision, act, consent or instruction of the Equityholder Representative as being the decision, act, consent or instruction of each and every such Equityholder.
10.15.3. The Equityholder Representative will have the right to recover, at its sole discretion, from the Representative Fund Amount (such amounts in the account, at any given time, the “Representative Fund”), prior to any distribution to the Equityholders, (i) the Equityholder Representative’s out-of-pocket expenses (including fees and expenses of counsel, accountants or other agents or experts) incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 10.15.5. In the event the amount of the Representative Fund available to satisfy Representative Expenses (the “Remaining Fund Property”) is insufficient to satisfy all Representative Expenses, then each Equityholder will be obligated to pay the Representative Expenses in excess of the Remaining Fund Property (or, at the election of the Equityholder Representative, such excess amount may be deducted from any release to such Equityholders from the Escrow Amount). Any release of the Representative Fund shall be made (i) to the Payments Administrator to be distributed to the Stockholders in accordance with their respective Pro Rata Shares and (ii) to the Surviving Corporation to be distributed to the Optionholders in accordance with their respective Pro Rata Shares through the Surviving Corporation’s payroll system in accordance with Section 3.2.4 but not later than thirty days following the date or dates on which any amount becomes due and payable. The Equityholders will not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Equityholder Representative will not be liable for any loss of principal of the Representative Fund other than as a result of its gross negligence or willful misconduct. The Equityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For Tax purposes, the Representative Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.
10.15.4. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Equityholder Representative hereunder, (i) the Equityholder Representative shall incur no responsibility or liability whatsoever to any of the Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder 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, (ii) the Equityholder Representative shall not be liable to the Equityholders for any apportionment or distribution of payments made by the Equityholder Representative in good faith, and (iii) the Equityholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the namematter at issue, place and stead any error in judgment or other act or omission of the Equityholder Representative pursuant to such SFC advice shall in no event subject the Equityholder Representative to liability to any of the Equityholders.
10.15.5. Each Equityholder shall indemnify, defend and hold harmless the Equityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Expenses”) arising out of or in connection with respect to all matters under the Equityholder Representative’s execution and performance of this Agreement and the transactions contemplated agreements ancillary hereto, in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by this Agreement. Such powers shall include, without limitationthe gross negligence or willful misconduct of the Equityholder Representative, the taking Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholder Representative by the Equityholders, any such Representative Expenses may be recovered by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: from (i) executethe Representative Fund Amount, deliver(ii) any funds from the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, acknowledgethat while this section allows the Equityholder Representative to be paid from the Representative Fund Amount and the Escrow Amount, certify and file (in this does not relieve the name Equityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Equityholder Representative be required to advance its own funds on behalf of any or all of such SFC the Equityholders or otherwise) . Any restrictions or limitations on indemnity or liability set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative in this paragraph. The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholder Representative or the termination of this Agreement.
10.15.6. The Equityholder Representative may be removed at any and all documents and to take any and all actions time by written consent of a majority-in-interest of the Equityholders. In the event that the Equityholder Representative may, becomes unable or unwilling to continue in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08its capacity as Equityholder Representative, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of if the Equityholder Representative Holdback Amount; resigns as the Equityholder Representative, a majority-in-interest of the Equityholders may, by written consent, appoint a new representative as the Equityholder Representative. Notice and (iv) execute amendments (a copy of any written consent removing such existing representative or appointing such new representative and additional documents related thereto) bearing the signatures of a majority-in-interest of the Equityholders must be delivered to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated herebyParent and, if applicable, the execution thereof Escrow Agent and Payments Administrator. Such removal or appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and, if applicable, the Escrow Agent and Payments Administrator. For the purposes of this Section 10.15, a “majority-in-interest of the Equityholders” means Equityholders representing in the aggregate a Pro Rata Share of greater than 50%.
10.15.7. Following the Closing, any payments to be made to the Stockholders at any time that the Payments Agreement is not in effect shall be conclusive evidence of made to such determination. Xxxx hereby accepts his appointment Stockholders as directed by the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) 10.15.8. Notwithstanding anything to the contrary contained in this Agreement or any Escrow Agreement, Parentno Equityholder shall have any right to, the Surviving Corporation, and or any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters interest or claim relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, the Escrow Amount or Section 9.04 Representative Fund unless and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (until it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case has been finally determined in accordance with the terms and conditions of this Agreement or the Escrow Agreement that such SFC Equityholder’s Percentage Interests, for any loss, liability funds or expense incurred without gross negligence or willful misconduct on the part of the other property are to be distributed to such Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs the terms and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to conditions of this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Escrow Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationsas applicable.
Appears in 1 contract
Samples: Merger Agreement (Allstate Corp)
Equityholder Representative. (a) Each SFC EquityholderThe Equityholder Representative shall have the power and authority to take any of the following actions on behalf of the Equityholders: (i) to give and receive notices, communications and consents under this Agreement (including the Closing Payment Certificate, the Initial Consideration Payout Spreadsheet and any Additional Payout Spreadsheet) and the Exchange Agent Agreement; (ii) to receive and facilitate distribution of payments pursuant to this Agreement and the Exchange Agent Agreement (including payment of all Transaction Expenses); (iii) to waive, modify or amend any provision of this Agreement and the Exchange Agent Agreement; (iv) to assert any claim or institute any Action; (v) in the Equityholder Representative’s sole discretion, to investigate, defend, contest or litigate any Action initiated by any Person against the Equityholder Representative or any Equityholder under this Agreement and the Exchange Agent Agreement, as the Equityholder Representative; (vi) in the Equityholder Representative’s sole discretion, to receive process on behalf of any Equityholder in any such Action; (vii) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other Third Party intermediaries with respect to any disputes arising under this Agreement and the Exchange Agent Agreement; (viii) in the Equityholder Representative’s sole discretion, to negotiate and enter into settlements with respect to any indemnification claims arising under this Agreement and the Exchange Agent Agreement; (ix) in the Equityholder Representative’s sole discretion, to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement and the Exchange Agent Agreement; (x) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, assignments, letters and other writings; and (xi) in the Equityholder Representative’s sole discretion, engage, at the Equityholders’ expense, attorneys, accountants, financial and other advisors, paying or exchange agents and other persons necessary or appropriate for the accomplishment of the foregoing, and, in general, to do any and all things and to take any and all action that the Equityholder Representative, in the Equityholder Representative’s sole discretion may be necessary or proper or convenient in connection with or to carry out the activities described in this Agreement and the Exchange Agent Agreement. All such actions taken by the Equityholder Representative shall be deemed to be facts ascertainable outside of this Agreement for purposes of calculating the Closing Merger Consideration and/or any Additional Payments, as applicable, or for any other purpose hereunder, and shall be binding on all Equityholders. The Equityholders agree that, if deemed necessary by the Equityholder Representative, in his or her sole discretion, then the Equityholder Representative may fund the Equityholder Representative Expense Fund with such additional funds as are necessary to return the balance in the Equityholder Representative Expense Fund to the Equityholder Representative Expense Holdback Amount from (x) any portion of the Indemnity Holdback Amount that would otherwise be released to the Equityholders on the Holdback Release Date under Section 9.11(a) or (y) any Earnout Payment that is due and payable to the Equityholders under the Earnout Consideration Schedule, after any applicable offset under Section 9.11, in each case, by virtue of his, her providing written instruction to Parent (with simultaneous written notice to the Equityholders) to transfer the applicable amount to the Equityholder Representative Expense Fund by wire transfer or its execution and delivery of immediately available funds. Parent shall have no Liability to any Equityholder for any amount disbursed to the Equityholder Representative Expense Fund pursuant to this Section 8.01(a).
(b) By executing this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative hereby accepts such power and authority.
(c) In addition to and without limiting the power and authority of the Equityholder Representative to take actions on behalf of the Equityholders as set forth in Section 8.01(a), by executing or voting to approve this Agreement, and/or by executing and delivering a Joinder Agreement, each Equityholder shall be deemed to have irrevocably authorized, appointed and empowered the agentEquityholder Representative to be the exclusive proxy, representative, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder Equityholder, with full power of substitution, to make all decisions and determinations and to act in the nameand execute, place deliver and stead receive all documents, instruments and consents on behalf of such SFC Equityholder with respect to all matters under this Agreement Equityholder, at any time, in connection with, and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking that may be deemed by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken necessary or made by any SFC Equityholder under appropriate to accomplish the intent and implement the provisions of, this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that facilitate the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements consummation of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.
(b) The power of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Equityholder Representative, after 5 days’ notice to Parent the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC Equityholders.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent, the Surviving Corporation, and any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, or Section 9.04 and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interests, for any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationshereby.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Equityholder Representative. (a) Each SFC Equityholder, by virtue 10.14.1 By voting in favor of his, her or its execution and delivery the adoption of this AgreementAgreement and/or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Equityholder shall be deemed to have approved the designation of, and hereby irrevocably nominatesdesignates, constitutes and appoints Xxxx Shareholder Representative Services LLC, a Colorado limited liability company, as the Equityholder Representative and as of the agent, agent Closing for service of process and true and lawful attorney-in-fact of such SFC Equityholder all purposes in connection with full power of substitution, to act in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall includeagreements ancillary hereto.
10.14.2 A decision, without limitationact, consent or instruction of the taking Equityholder Representative hereunder will constitute a decision, act, consent or instruction of all Equityholders and will be final, binding and conclusive upon each of such Equityholders, and the Escrow Agent, Paying Agent and Parent may rely upon any such decision, act, consent or instruction of the Equityholder Representative as being the decision, act, consent or instruction of each and every such Equityholder.
10.14.3 The Equityholder Representative will incur no liability of any kind with respect to any action or omission by the Equityholder Representative in connection with the Equityholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Equityholder Representative’s gross negligence or willful misconduct. The Equityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Equityholders will indemnify, defend and hold harmless the Equityholder Representative from and against any and all actions losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, expenses (including the exercise fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Expenses”) arising out of or in connection with the Equityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the power to: Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholder Representative by the Equityholders, any such Representative Expenses may be recovered by the Equityholder Representative from (i) execute, deliver, acknowledge, certify and file (the funds in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions Representative Fund Amount (provided that the Equityholder Representative mayshall recover any Representative Expenses from the Representative Fund Amount prior to seeking payment directly from the Equityholders), in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Equityholders, and receive notices and communications under this Agreement; (iii) authorize any other funds that become payable to the payment Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while the Equityholder Representative may be paid from the aforementioned sources of feesfunds, expenses and distributions including, without limitationthis does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Equityholder Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any feesrestrictions or limitations on liability or indemnification obligations of, expenses or distributions out provisions limiting the recourse against non-parties otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative under this Section 10.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) or the termination of this Agreement.
10.14.4 The Equityholder Representative may be removed at any time by written consent of a majority-in-interest of the Equityholders. In the event that the Equityholder Representative becomes unable or unwilling to this Agreement on behalf of such SFC continue in its capacity as Equityholder generally consistent with Representative, or if the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment Equityholder Representative resigns as the Equityholder Representative.
(b) The power , a majority-in-interest of attorney granted in this Section 11.01; (i) is coupled with an interest and is irrevocable; (ii) may be delegated the Equityholders may, by written consent, appoint a new representative as the Equityholder Representative, after 5 days’ notice . Notice and a copy of any written consent removing such existing representative or appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders must be delivered to Parent and, if applicable, the Escrow Agent and Paying Agent. Such removal or appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and, if applicable, the Escrow Agent and Paying Agent.
10.14.5 Following the Closing, any payments to be made to the Equityholders at any time that the Paying Agent Agreement is not in effect shall be made to such Equityholders as directed by the Surviving Corporation of the identity of the delegate; and (iii) shall survive the death or incapacity of each of the SFC EquityholdersEntity.
(c) 10.14.6 Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement, Parentno Equityholder shall have any right to, the Surviving Corporation, and or any NAVR Indemnified Parties shall be entitled to deal exclusively with the Equityholder Representative on all matters interest or claim relating to this Agreement, including, without limitation, Section 2.06, Section 2.07, Section 2.08, the Escrow Amount or Section 9.04 Representative Fund unless and Article X, and each NAVR Indemnified Party shall be entitled to deal exclusively with the Equityholder Representative in respect of all such matters, and each of them shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SFC Equityholder by the Equityholder Representative in respect of such matters, and on any other action taken or purported to be taken on behalf of any SFC Equityholder by the Equityholder Representative, as fully binding upon such SFC Equityholder.
(d) The Equityholder Representative may at any time designate a replacement Equityholder Representative with the consent of the Parent (which will not be unreasonably withheld, conditioned or delayed), and each SFC Equityholder, by virtue of his or her execution and delivery of this Agreement, hereby consents to such replacement Equityholder Representative. If the Equityholder Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the SFC Equityholders, then the SFC Equityholders shall, by “majority vote”, based on the SFC Equityholder’s Percentage Interests, within 30 days after such death or disability, appoint a successor representative and, within five days thereafter, shall notify Parent and the Surviving Corporation of the identity of such successor. Any such successor shall become the “Equityholder Representative” for all purposes under this Agreement. If for any reason there is no Equityholder Representative at any time, all references herein to the Equityholder Representative shall be deemed to refer to the SFC Equityholders holding a majority of the Percentage Interests.
(e) No bond shall be required of the Equityholder Representative, and the Equityholder Representative shall receive no compensation for his services. The Equityholder Representative shall not be liable to any SFC Equityholder for any act done or omitted hereunder as Equityholder Representative while acting in good faith and in the exercise of his reasonable business judgment with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder (until it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Equityholder Representative shall be entitled to be indemnified by each SFC Equityholder, in each case has been finally determined in accordance with the terms and conditions of this Agreement or the Escrow Agreement that such SFC Equityholder’s Percentage Interests, for any loss, liability funds or expense incurred without gross negligence or willful misconduct on the part of the other property are to be distributed to such Equityholder Representative with respect to any matter arising out of or in connection with the acceptance or administration of his duties hereunder. The Equityholder Representative shall be entitled to recover from each SFC Equityholder, in each case in accordance with such SFC Equityholder’s Percentage Interest, any out-of-pocket costs the terms and expenses reasonably incurred by the Equityholder Representative in good faith and in connection with actions taken by the Equityholder Representative pursuant to conditions of this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) (other than in respect of expenses satisfied out of the Equityholder Representative Holdback Amount). The Equityholder Representative shall keep reasonably detailed records of the costs and expenses for which he seeks reimbursement as herein provided.
(f) Each SFC Equityholder hereby acknowledges and agrees that the Equityholder Representative Holdback Amount shall be withheld and paid directly to an account maintained by the Equityholder Representative (or a financial institution selected by the Equityholder Representative) as a fund for the fees and expenses (including, without limitation, any legal fees and expenses) of the Equityholder Representative incurred in connection with this Agreement, with any balance of the Equityholder Representative Holdback Amount not utilized for such purposes to be remitted to the SFC Equityholders in accordance with their Percentage Interests. The Equityholder Representative will, if so requested in writing by any SFC Equityholder, provide such SFC Equityholder with a written report describing in reasonable detail the amount of any fees, expenses, distributions, or other remittances made out of the Equityholder Representative Holdback Amount; provided, however, that the Equityholder Representative will not have any obligation to provide any such written report to any particular SFC Equityholder any more than two times during any rolling twelve month period.
(g) Each of Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, and the Equityholder Representative expressly and knowingly consent to Xxxxxxx Xxxxxx L.L.P. representing the Equityholder Representative, in his capacity as such from and after the Closing in any matter that is or may be adverse to Parent, Merger Sub, the Company, the Surviving Corporation, the SFC Equityholders, in connection with the transactions contemplated by or otherwise arising under this Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby. This consent constitutes an advance waiver of any conflict of interest claim against Xxxxxxx Xxxxxx L.L.P. as a result of such firm representing the Equityholder Representative as described in the preceding sentence. In addition, each of Parent, Merger Sub, the Company, the Surviving Corporation, and the SFC Equityholders, expressly and knowingly, effective as of the Closing: (i) acknowledge and agree that all communications between Xxxxxxx Xxxxxx L.L.P. and Company or its agents or representatives in connection with the transactions contemplated by or otherwise arising under this Escrow Agreement, the Escrow Agreement or the other ancillary agreements contemplated hereby or thereby are subject to the sole and absolute control of the Equityholder Representative, (ii) waives any and all rights to obtain or otherwise control the disclosure of such communications, and (iii) covenants and agrees not to assert any rights whatsoever with respect to any such communicationsas applicable.
Appears in 1 contract
Samples: Merger Agreement (Certara, Inc.)
