Member Representative. (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint the Member Representative as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent and on behalf of such Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement and the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with the Represented Documents in writing.
Appears in 3 contracts
Samples: Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (Madison Square Garden Co)
Member Representative. (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of By executing this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any MemberAgreement, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, Members shall be deemed to have irrevocably appoint constituted the Member Representative as the sole representative his, her or its agent and attorney in fact with full power of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), substitution to act as from and after the agent date hereof and to do any and all things and execute any and all documents on behalf of such Represented Party regarding Members which may be necessary, convenient or appropriate to facilitate any matter relating to or matters under this Agreement, including but not limited to: (i) execution of the Escrow Agreementdocuments and certificates required pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement receipt and forwarding of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement; (iv) any and all consents, waivers, amendments or modifications deemed by the Credit Member Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the Letters execution or delivery of Transmittal any documents that may be necessary or appropriate in connection therewith; (v) amending this Agreement or any of the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted instruments to be taken under such Represented Documentsdelivered to the Corporate Taxpayer pursuant to this Agreement; (vi) taking actions the Member Representative is expressly authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and compromising, (ii) on behalf of the such Members, (x) directing the Escrow Agent to make payment any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and executing, on behalf of the Escrow Funds in accordance with Section 2.14such Members, Article 12 and the Escrow Agreementany settlement agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators release or other document with respect to Section 2.14, Article 12 and the Escrow Agreement such dispute or remedy; and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (ivviii) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver consultants on behalf of the Members, the Management Sellers such Members in connection with this Agreement or any other Rollover Holdco agreement contemplated hereby and paying any fees related thereto. The Member or, prior Representative may resign upon thirty (30) days’ written notice to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally presentCorporate Taxpayer. All decisions reasonable, documented out-of-pocket costs and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made expenses incurred by the Member Representative in its capacity as such shall be promptly reimbursed by the Corporate Taxpayer upon invoice and reasonable support therefor by the Member Representative. To the fullest extent permitted by law, none of the Member Representative, any of its Affiliates, or any of the Member Representative’s or Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, OpCo or the Corporate Taxpayer for damages arising from any action taken or omitted to be taken by the Member Representative or any other Person with respect to OpCo or the Corporate Taxpayer, except in the case of any action or omission which constitutes, with respect to such Person, willful misconduct or fraud. Each of the Covered Persons may consult with legal counsel, accountants, and other experts selected by it, and any act or omission suffered or taken by it on behalf of OpCo or the Corporate Taxpayer or in furtherance of the interests of OpCo or the Corporate Taxpayer in good faith in reliance upon and in accordance with the advice of such counsel, accountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided, that such counsel, accountants, or other experts were selected with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to OpCo, the Corporate Taxpayer or the Members for acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. Each Covered Person shall not be liable for, and shall be indemnified by the Corporate Taxpayer for, any liability, loss, damage, penalty or fine incurred by the Covered Persons (and any cost or expense incurred by the Covered Persons in connection therewith and herewith and not previously reimbursed pursuant to this Section 7.14) arising out of or in connection with the Represented Documents in writingacceptance or administration of its duties under this Agreement, and such liability, loss, damage, penalty, fine, cost or expense shall be treated as an expense subject to reimbursement pursuant to the provisions of this Section 7.14, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the willful misconduct or fraud of the Covered Person.
Appears in 3 contracts
Samples: Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.)
Member Representative. (a) Pursuant to For the Deal Approvalpurposes of this Section 9.05, and in any event upon the delivery (whether prior to Continuing Members hereby appoint, as of the date of this Agreement or otherwisewith retroactive effect if necessary, Cuattro, as the representative of the Continuing Members as described in this Section 9.05(a) of an executed Letter of Transmittal to Parent and elsewhere in accordance with this Agreement (in such capacity, the “Member Representative”). The Member Representative is designated as the attorney-in-fact and without any further action agent for and on the part behalf of any Membereach Continuing Member and their respective heirs, each Member shall thereby, successors and each Management Seller or other Rollover Holdco Member and, solely assigns with respect to the period prior to rights and obligations under this Section 9.05 and the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint taking by the Member Representative as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco any and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent and on behalf of such Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement all actions and the Letters making of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions any decisions required or permitted to be taken by the Member Representative under such Represented Documents, (ii) this Section 9.05. The Member Representative shall have no authority or power to act on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 Company. The Member Representative shall have authority and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim act on behalf of the Continuing Members thereunder and with respect to transact matters of litigation the exercise or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval all rights or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities obligations arising under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking 9.05. The Continuing Members shall be bound by all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully taken and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made documents executed by the Member Representative in connection with this Section 9.05, and Heska and the Represented Documents Company shall be entitled to rely on any action or decision of the Member Representative. Without limiting the generality of the foregoing, the Member Representative shall have full power and authority to interpret all the terms and provisions of this Agreement on behalf of all the Continuing Members and their respective heirs, successors and assigns. The Continuing Members hereby appoint and constitute the Member Representative the true and lawful attorney-in-fact of the Continuing Members, with full power in writingtheir name and on their behalf to act according to the terms of this Agreement to do all things and to perform all acts including exercising any right or performing any obligation under this Section 9.05 and execute and deliver any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any Continuing Member or by any act of any Continuing Member or by operation of law, whether by such person’s death, disability, protective supervision or any other event. Without limiting the foregoing, this power of attorney is to ensure the performance of a special obligation and, accordingly, each Continuing Member shall be deemed to have waived and renounced its, his or her right to renounce this power of attorney unilaterally. Each Continuing Member shall be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the action of the Member Representative taken in good faith under this Agreement. Notwithstanding the power of attorney granted in this Section 9.05, no agreement, instrument, acknowledgement or other act or document shall be ineffective (against the Continuing Member signing such instrument) solely by reason of a Continuing Member (instead of the Member Representative) having signed or given the same directly. The provisions of this Section 9.05(a) shall in no way impose any obligations on Heska or the Company. In particular, Heska and the Company shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no liability to any of the Continuing Members with respect to actions, decisions or determinations of the Member Representative. Heska and the Company shall be entitled to assume that all actions, decisions and determinations of the Member Representative are fully authorized. At any time during the term of this Agreement, a majority-in-interest of the Continuing Members may, by written consent, remove and replace the Member Representative. The newly appointed Member Representative shall deliver notice of his or her appointment and copies of such consents to the Company and Heska as soon as practicable. Such appointment will be effective upon the later of the date indicated in the consent or the date such notice is received by the Company and Heska. In the event that the Member Representative dissolves, resigns as such or becomes unable or unwilling to continue in its capacity as Member Representative, a majority-in-interest of the Continuing Members shall, by written consent, appoint a new Member Representative. The newly appointed Member Representative shall deliver notice of his or her appointment to the Company and Heska as soon as practicable. Such appointment will be effective upon the later of the date indicated in the consent or the date such notice is received by the Company and Heska.
Appears in 2 contracts
Samples: Operating Agreement (Heska Corp), Operating Agreement (Heska Corp)
Member Representative. (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall thereby, The Company and each Management Seller or other Rollover Holdco Member and, solely Contribution Consideration Recipient (and with respect to the period prior to the consummation of the Closingeach Phantom Equity Holder, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint as agreed in an ancillary agreement hereto) hereby agree that Xxxxxx Xxxxxx shall be appointed as the Member Representative Representative, as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent attorney-in-fact for and on behalf of such Represented Party regarding any matter relating to or under this Agreementeach of them, the Escrow Agreement, the Credit Agreement and the Letters taking by the Member Representative of Transmittal (the “Represented Documents”) including for the purposes of (i) executing any and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions and the making of any decisions required or permitted to be taken by him under such Represented Documentsthis Agreement or any ancillary agreement hereto to which the Company and/or any Contribution Consideration Recipient is a party, (ii) on behalf including the exercise of the Members, power to (xi) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of and complying comply with orders of courts and awards of arbitrators with respect to Section 2.14any indemnification claims, Article 12 and the Escrow Agreement (ii) resolve any indemnification claims, and (ziii) acting take all actions necessary in the judgment of the Member Representative for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14accomplishment of the other terms, Article 12 conditions and limitations of this Agreement. Accordingly, the Escrow Agreement, including the Member Representative has authority and power to compromise any claim act on behalf of the Members thereunder Company and each Contribution Consideration Recipient (and with respect to transact matters of litigation each Phantom Equity Holder, as agreed in an ancillary agreement hereto) with respect to this Agreement and the disposition, settlement or other claims handling of all indemnification claims, rights or obligations arising from and taken pursuant to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior toor any ancillary agreement hereto to which the Company and/ or any Contribution Consideration Recipient is a party. The Company and each Contribution Consideration Recipient (and with respect to each Phantom Equity Holder, at and following the Closing (including pursuant to Section 14.02); and (vias agreed in an ancillary agreement hereto) taking will be bound by all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made taken by the Member Representative in connection with this Agreement or any ancillary agreement hereto to which such Party is a party and Parent shall only be required to acknowledge or act upon written communication signed by the Represented Documents Member Representative. Notwithstanding anything to the contrary contained herein, the Member Representative shall have no liability to any Party in writingexcess of the Member Representative’s portion of the Escrowed Indemnification Stock for any action taken or omitted to be taken hereunder, unless such liability is determined by a judgment or a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Member Representative.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alternative Asset Management Acquisition Corp.)
Member Representative. (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint The Company hereby designates Cowen as the Member Representative as (the sole representative of such Member, Management Seller or other Rollover Holdco “Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented PartyRepresentative”), to act as represent the agent and on behalf of such Represented Party regarding any matter Escrow Beneficiaries following the Effective Time in all matters relating to or this Agreement and the Merger. The Member Representative shall have the following powers and duties: (i) to serve as Member Representative under this Agreement, the Warranty Escrow Agreement, the Credit Expense Escrow Agreement and the Letters EC Escrow Agreement and, in such capacity, take such actions and to incur such costs and expenses as the Member Representative, in its sole discretion, deems necessary or advisable to safeguard the interests of Transmittal (the “Represented Documents”) including Escrow Beneficiaries in the Warranty Escrow Fund, Expense Escrow Fund and EC Escrow Fund, including, but not limited to, joining with the Surviving Corporation in giving instructions to the Escrow Agent pursuant to Section 13.12 hereof, contesting or agreeing with any claim by a Parent Group Indemnified Person for recovery from the purposes of (i) executing Warranty Escrow Fund or the EC Escrow Fund and delivering commencing or defending litigation with Parent, Acquisition Sub or the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by Surviving Corporation and settling any such Represented Party without such further approval), and taking all actions required claim or permitted to be taken under such Represented Documents, litigation; (ii) on behalf of to compromise, modify, settle, waive, relinquish, exchange, liquidate or otherwise resolve the Members, (x) directing the Escrow Agent to make payment rights of the Escrow Funds Beneficiaries in accordance with Section 2.14, Article 12 and to any amounts that are or may be payable after the Effective Time by the Escrow AgreementBeneficiaries hereunder, (y) agreeing towhich compromise, negotiatingmodification, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect settlement, waiver, relinquishment, exchange, liquidation or resolution may include payment to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14Beneficiaries of cash, Article 12 and the Escrow Agreement, including the power to compromise property or any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, combination thereof; (iii) givingexcept as otherwise provided for in this Agreement, receiving to employ accountants, attorneys and forwarding all notices such other agents as the Member Representative may deem advisable and communications required to be given pay from the Warranty Escrow Fund, as provided in this Agreement, or received by the Represented Parties under the Represented Documents and in connection with any of the TransactionsExpense Escrow Fund, including receiving service of process in connection with any claims thereunder, reasonable compensation for their services; (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion to maintain a register of the Member Representative in the performance of its duties under the Represented Documents, Escrow Beneficiaries; and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking take all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that which the Member Representative deems necessary or appropriate advisable in order to carry out the foregoing. The Member Representative shall serve without compensation, but shall be entitled to reimbursement from the Expense Escrow Fund for its discretion reasonable costs and expenses including without limitation any Taxes with respect to the Expense Escrow Fund that the Member Representative is obligated to pay in such capacity. The Member Representative shall not be liable to any Escrow Beneficiaries for the performance of any act or failure to act so long as it acted (or failed to act) in good faith within what it reasonably believed to be the scope of its authority and for a purpose which it reasonably believed to be in the best interests of the Escrow Beneficiaries. The Member Representative shall be entitled to indemnity by the Escrow Beneficiaries from and against any and all Losses which may at any time be imposed on, incurred by or asserted against the Member Representative in any way relating to the subject matter or arising out of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions this Agreement or any related agreement or instrument or any action taken or omitted to be taken by the Member Representative are binding upon all Represented Partiesunder or in connection therewith, and no Represented Party shall have unless such Losses resulted solely from the right to object, dissent, protest or otherwise contest the same. As the representative bad faith of the Represented Parties under this AgreementMember Representative. If an action or proceeding with respect to which the Member Representative is entitled to indemnification hereunder should be commenced or threatened against the Member Representative, the Member Representative shall act be entitled to draw from the Expense Escrow Fund, as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigationwhen incurred by it, all decisions made by the Member Representative expenses reasonably incurred in connection with the Represented Documents investigation and defense thereof, provided, however, that, the Member Representative shall repay to the Expense Escrow Fund or distribute to the Escrow Beneficiaries if the Expense Escrow Fund shall have been completely depleted, any expenses so advanced to the extent it is ultimately determined, by final judgment of a court of competent jurisdiction, that the Member Representative is not entitled to indemnification hereunder. The Escrow Beneficiaries may at any time, by majority vote (one vote for each Unit), remove or replace the Member Representative. No change in writingthe Member Representative shall be effective as against Parent, Acquisition Sub or the Surviving Corporation until it has received notice thereof.
Appears in 1 contract
Member Representative. (a) Pursuant to the Deal Approval, NeighborhoodFind and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall therebyhereby irrevocably constitute and appoint Avalon Equity Fund L.P. (the "Member Representative"), with full power of substitution and each Management Seller re-substitution, as its and their true and lawful agent, attorney-in-fact and representative (such entity and its appointed and designated successor or other Rollover Holdco Member and, solely with respect successors being herein referred to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint the Member Representative as the sole representative of such Member, Management Seller or other Rollover Holdco "Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”Representative"), with full power to act as the agent for and on behalf of NeighborhoodFind and the Members, and each of them, for all purposes under this Agreement and in connection with the Merger including, without limitation, for purposes of: (i) determining the amount of any Damages (as such Represented Party regarding any matter relating term is hereinafter defined) suffered or incurred by MonsterDaata and the number of shares and amount of assets held under the Escrow Agreement to be transferred or distributed to MonsterDaata in accordance with the terms of the Escrow Agreement, (ii) determining the amount of Member Damages (as that term is hereinafter defined) suffered or incurred by the Members, (iii) receiving notices from MonsterDaata given under this Agreement, of which the Member Representative will give a copy to the other Members, (iv) approving and agreeing with MonsterDaata as to additions, deletions, changes, modifications and amendments to this Agreement and the Annexes hereto including, without limitation, the Escrow Agreement, the Credit Agreement except with respect to any addition, deletion, change, modification or amendment to a material financial term or condition of any of such documents that would materially, financially and the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf of adversely affect the Members, and (xv) directing settling finally and completely any disputes or controversies among the Escrow Agent parties hereto (other than solely among the Members) with respect to make payment the interpretation or effect of the Escrow Funds in accordance with Section 2.14or damages or relief under this Agreement and any and all transactions contemplated hereby (including, Article 12 and without limitation, under the Escrow Agreement). The Member Representative shall be entitled to reimbursement by the Members from the consideration actually payable to the Members or otherwise for all reasonable costs and expenses incurred by it in fulfilling its duties hereunder, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement Members agree among themselves that such costs and (z) acting expenses shall be borne pro rata among them according to the number of membership interests owned immediately prior to the Effective Time. The Members agree that the Member Representative may make reasonable requests for advances to cover such costs and expenses, and the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise will promptly make such advances. In no event will MonsterDaata be liable for any claim on behalf costs or expenses of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received nature incurred by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documentscapacity as such. NEIGHBORHOODFIND AND EACH MEMBER, and authorizing and directing the disbursement of funds JOINTLY AND SEVERALLY, AGREE THAT THE MEMBER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE MEMBERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION 1.12. MonsterDaata shall not have any obligation or liability to pay the fees and expenses of such Persons (v) granting any consent, approval indemnify or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that defend the Member Representative deems necessary in respect of any claim or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by liability asserted against the Member Representative are binding upon all Represented Partiesby any Member or its successors or assigns. All determinations, decisions, actions and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions like made by the Member Representative in connection with the Represented Documents in writingshall be final, conclusive and binding upon all Members and all persons claiming under or through them.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Monsterdaata Com Inc)
Member Representative. (a) Pursuant The Company (and pursuant to the Deal Approval, and in any event upon terms of the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any MemberCompany Member Consent, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, Company Members) irrevocably appoint appoints the Member Representative as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as representative, agent, proxy and attorney-in-fact for the agent and on behalf of such Represented Party regarding any matter relating to or Company Members for all purposes under this Agreement, the Escrow AgreementMerger and otherwise in connection with the Contemplated Transactions, including, without limitation, the Credit Agreement full power and the Letters of Transmittal (the “Represented Documents”) including for the purposes of authority on each such Company Member’s behalf to: (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required receive notices or permitted to be taken under such Represented Documentsservice of process, (ii) on behalf of the Membersnegotiate, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14determine, Article 12 compromise, settle and the Escrow take any other action permitted or called for by any Company Member under this Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) givingexecute and deliver any termination, receiving and forwarding all notices and communications required amendment or waiver to be given or received by the Represented Parties under the Represented Documents and this Agreement in connection with any of the Transactions, including receiving service of process in connection with any claims thereundertherewith, (iv) engaging attorneysengage such counsel, accountants, financial experts and other advisors, paying agents and other Persons consultants as the Member Representative deems necessary or appropriatein connection with exercising the powers granted hereunder and, in the sole discretion absence of bad faith on the part of the Member Representative in Representative, will be entitled to conclusively rely on the performance opinions and advice of its duties under the Represented Documentssuch Persons, (v) receive funds and authorizing and directing the disbursement make or release payments of funds to pay any amounts that the Member Representative has incurred or reasonably expects to incur in connection with the Company Members’ obligations under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including amounts required to pay the fees and expenses of such Persons professionals incurred in connection with the Contemplated Transactions, (vvi) granting any consentto execute closing statements, approval or waiver settlement statements and funds flow statements on behalf of the Members, Company Members and the Management Sellers or other Rollover Holdco Member or, prior Company. The Company Members acknowledge that Parent and Merger Sub will be entitled to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made any act, notice, instruction or communication of the Member Representative as provided in this Section 10.1 as the acts of the Company Members and will not be liable in any manner whatsoever for any of Parent or Merger Sub’s actions, as applicable, taken or not taken in reliance upon the acts or omissions or communications or writings given or executed by the Member Representative in connection with the Represented Documents in writingRepresentative.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Creative Realities, Inc.)
Member Representative. (a) Pursuant to Effective upon and by virtue of the Deal ApprovalCompany Member Vote, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part act of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the ClosingHolders or Optionholders, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint the Member Representative is hereby irrevocably appointed as the sole representative of such Memberrepresentative, Management Seller agent, proxy, and attorney in fact (coupled with an interest) for all the Securityholders for all purposes under this Agreement including the full power and authority on the Holders’ and Optionholders’ behalf: (i) to consummate the Transactions, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other Rollover Holdco Member oragreements, solely with respect instruments, and documents contemplated hereby or executed in connection herewith, (iii) to the period prior receive and disburse to, or caused to the consummation of the Closingbe received or disbursed to, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent and any Holder or Optionholder any funds received on behalf of such Represented Party regarding any matter relating to Holder or Optionholder under this AgreementAgreement (including, the Escrow Agreement, the Credit Agreement and the Letters of Transmittal (the “Represented Documents”) including for the purposes avoidance of (idoubt, any portion of the Merger Consideration) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documentsotherwise, (iiiv) to withhold any amounts received on behalf of any Holder or Optionholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the MembersSecurityholders) any and all obligations or liabilities of any Holder, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation Optionholder or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documentsany of their commitments hereunder, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting to execute and deliver any consent, approval amendment or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior toapproval of any Holder or Optionholder), at and following the Closing (including pursuant to Section 14.02); and (vi) taking to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take all other actions or refraining from doing any further act or deed on its own behalf to be taken by or on behalf of any Represented Party that Holder or Optionholder in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Member Representative deems necessary and shall survive the death, incapacity, bankruptcy, dissolution or appropriate in its discretion relating to the subject matter liquidation of each Holder and Optionholder. Each of the Represented Documentsother parties shall be entitled to rely conclusively, as fully without inquiry, on any document executed or purported to be executed on behalf of any Holder or Optionholder by the Member Representative and completely as the Represented Parties could do if personally present. All decisions on all decisions, consents, instructions, omissions and actions by the Member Representative are taken or purported to be taken on behalf of any Holder or Optionholder by the Member Representative, all of which shall be legally binding upon all Represented Partieseach Holder and Optionholder, and no Represented Party Holder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same. As the representative , and each of the Represented Parties under other parties to this Agreement, Agreement are hereby relieved from any liability to any Person in accordance with the foregoing. The Member Representative shall act as have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with express provisions of this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with the Represented Documents in writing.
Appears in 1 contract
Samples: Joinder Agreement (Roman DBDR Tech Acquisition Corp.)
Member Representative. (aA) Pursuant Appointment of Member Representative. By executing and delivering this Agreement, each Seller irrevocably appoints Xxxxxxx Xxxxxx to serve as the Deal ApprovalMember Representative with power of designation and assignment as his or its true and lawful attorney-in-fact and agent with full power of substitution, to act for and on behalf of, and in any event upon the delivery (whether prior to name of, such Seller with the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and full power, without any further action on the part of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint the Member Representative as the sole representative consent of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”)Seller, to act exercise as the agent and on behalf of such Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement and the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Membershis sole discretion deems appropriate, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities powers such Seller could exercise under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking take all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter judgment of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with this Agreement and the Represented Documents transactions contemplated in writingthis Agreement. Without limiting the generality of the foregoing, each Seller irrevocably grants the Member Representative full power and authority: (1) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement; (2) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by such Seller pursuant to this Agreement; and (h) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Member Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement, including the exercise of all rights granted to Sellers under this Agreement. Buyer may rely exclusively on any notices and other acts of the Member Representative as being legally binding acts of each Seller individually and Sellers collectively. For purposes of clarity, any decision or action by the Member Representative constitutes a decision or action of all Sellers is final and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller to the Member Representative is deemed coupled with an interest and all authority conferred is irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or events.
Appears in 1 contract
Member Representative. (a) Pursuant Each Member shall be deemed to have irrevocably approved the Deal Approvaldesignation of, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Memberhereby irrevocably designates, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint Xxxxxx X. Xxxxxx as the Member Representative and Xxxxxx X. Xxxxxx is hereby appointed as of the date hereof as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation true and lawful agent and attorney in fact of the Closing, Rollover Holdco and each Acquired Entity Members as the case may be (each, a “Represented Party”), to act as the agent Member Representative for and on behalf of such Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement and the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder to give and receive notices and communications in connection with this Agreement and related matters, including in connection with claims for indemnification under this ARTICLE VIII, to transact matters take all actions, including the payment of litigation expenses or other claims and to bring any Proceeding defense on behalf of the Members under pursuant to Section 2.03(b)(iv)8.05, Article 12and to agree to, Section 9.11 or Section 14.05negotiate, (iii) givingdefend, receiving and forwarding enter into settlements, adjustments, and compromises of, and commence and prosecute litigation and comply with Governmental Orders with respect to, such claims, and to take all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactionsother actions, including receiving service the giving of process in connection with any claims thereunderinstructions to the Escrow Agent, that are either (ivi) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, appropriate in the sole discretion judgment of the Member Representative in for the performance accomplishment of its duties under the Represented Documentsforegoing or (ii) specifically authorized or mandated by Section 3.02, Section 3.05, Section 3.06, Section 3.07, Section 3.08, Section 6.15, Section 7.01, Section 7.02, and authorizing Section 8.08 and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this AgreementARTICLE X. In fulfilling his duties hereunder, the Member Representative shall act in good faith and in a manner that the Member Representative reasonably believes to be in the best interests of the Members, taken as a whole, and consistent with his obligations under this Agreement. The Member Representative shall be assisted from time to time by such Persons as the agent for all Represented Parties, shall have authority to bind each such Represented Party Member Representative deems necessary and appropriate in accordance with exercising his duties under this Agreement. The Member Representative shall be subject to removal by the Majority Member (or its designated successor). If the Member Representative shall die, be removed, become disabled or resign, or the Member Representative is otherwise unable to fulfill his responsibilities hereunder, the Majority Member shall appoint a successor Member Representative as soon as reasonably practicable after such death, removal, disability, resignation, or inability, and immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the former Member Representative as the Member Representative hereunder. Notices or communications to or from the Member Representative shall constitute notice to or from the Members. Each Member hereby agrees to receive correspondence from the Member Representative, including in electronic form. As promptly as reasonably practicable following the date hereof, the Company shall deliver to the Member Representative a mailing list with the mailing address and email address of each Member and holder of Company Options and the Member Representative may rely on such appointment mailing list unless notified in writing by any Member, holder of Company Options, or any authorized representative of any Member or holder of Company Options of a change in such Member’s or holder of Company Options’ mailing address or email address or of a transfer pursuant to Section 3.07, indentifying (in the case of a transfer) the name and authority until the receipt of notice address of the appointment of a successor interest holder. It is understood by all parties that Xxxxxx X. Xxxxxx is executing this Agreement solely in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by his capacity as the Member Representative and solely with respect to the specified provisions of this Agreement specified in connection with the Represented Documents first sentence of this clause (a), and the Member Representative shall have no duties or obligations, at law, in writingequity, by contract, or otherwise, to act on behalf of any Member, except for those duties or obligations expressly set forth in this Agreement.
Appears in 1 contract
Member Representative. (a) Pursuant By virtue of the approval and adoption of this Agreement by the Members pursuant to the Deal Approvaldelivery of the Written Consent, and without the need for further action by any Member, each of the Members will be deemed to have agreed to irrevocably appoint Xx. Xxxxx XxXxxxxx (who, by execution of this Agreement, hereby accepts such appointment) as his, her or its sole and exclusive agent, attorney-in-fact and as Member Representative, for and on behalf of the Members with full power of substitution, to give and receive notices and communications hereunder and to take any and all action permitted or required for the Members or Member Representative under this Agreement, including (i) to execute and deliver on behalf of the Members any amendment, consent or waiver under this Agreement and the Ancillary Agreements, (ii) to assert, and to agree to resolution of, all claims and disputes hereunder or thereunder, including under Section 2.9 and Section 7.4 hereof, (iii) to retain legal counsel and other professional services, at the expense of the Members, in connection with the performance by the Member Representative of this Agreement and the Ancillary Agreements, (iv) to execute and deliver on the Members’ behalf all documents and instruments which may be executed and delivered pursuant to this Agreement and the Ancillary Agreements, (v) to make and receive notices and other communications pursuant to this Agreement and the Ancillary Agreements and service of process in any event upon action arising out of or related to this Agreement and the delivery Ancillary Documents, (whether prior vi) to negotiate, settle or compromise any action arising out of or related to this Agreement or the date Ancillary Agreements or any of the Contemplated Transactions hereunder or thereunder, including to take any action (or determine not to take action) in connection with the defense, prosecution, settlement, compromise or other resolution of any claim for indemnification pursuant to Sections 7.2 and 7.3, and (vii) to do each and every act and exercise all rights that are either (x) necessary or appropriate in the judgment of the Member Representative for the accomplishment of the foregoing or (y) mandated or permitted by the terms of this Agreement or otherwise) the Ancillary Agreements. For the avoidance of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Memberdoubt, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation none of the Closingprovisions of this Section 9.18 shall serve to authorize, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint or empower the Member Representative as the sole representative or exclusive agent of such Member, Management Seller or other Rollover Holdco Member or, solely the Members with respect to the period prior to the consummation of the Closinghis, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent and on behalf of such Represented Party regarding any matter relating to her or under this Agreement, the Escrow Agreement, the Credit Agreement and the Letters its Letter of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval)or with respect to any rights, and taking all obligations or actions required or permitted to be taken under such Represented Documentsthereunder). The power of attorney granted in this Section 9.18 is coupled with an interest and is irrevocable, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to may be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions delegated by the Member Representative are binding upon all Represented Partiesand shall survive the death or incapacity of each Member. The Person appointed as Member Representative may be changed by the Members by agreement from time to time. Notwithstanding the foregoing, and no Represented Party shall have in the right to objectevent of a resignation of Member Representative or other vacancy in the position of Member Representative, dissent, protest or otherwise contest the same. As the representative such vacancy may be filled by a majority vote of the Represented Parties under this Agreementother Members. Neither the removal of, nor the appointment of a successor to, the Member Representative shall act as affect in any manner the agent for all Represented Partiesvalidity or enforceability of any actions taken or agreements, understandings or commitments entered into by the prior Member Representative, which shall have authority continue to bind each such Represented Party in accordance with this Agreementbe effective and binding on the Members. No bond will be required of Member Representative, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with will not receive any compensation for his 83 services. Notices or communications to or from Member Representative will constitute notice to or from the Represented Documents in writingMember.
Appears in 1 contract
Samples: Merger Agreement (Redfin Corp)
Member Representative. (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation Each of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint Indemnifying Parties hereby appoints the Member Representative as his, her or its true and lawful agent, proxy and attorney-in-fact, to execute and deliver this Agreement and the sole representative of such MemberEscrow Agreement on their behalf, Management Seller or other Rollover Holdco Member or, solely with respect to consent to the period prior to calculations, including the consummation allocation of the ClosingClosing Consideration among the Members, Rollover Holdco provided for in the Closing Consideration Spreadsheet, and each Acquired Entity as to exercise all or any of the case powers, authority and discretion conferred on him or her under this Agreement. (a) The Member Representative shall have and may be exercise on behalf of the Indemnifying Parties all of the powers conferred upon him or her pursuant to this Agreement and the Escrow Agreement, which shall include: (each, a “Represented Party”), i) The power to act as execute any agreement or instrument in connection with the agent transactions contemplated hereby for and on behalf of such Represented Party regarding the Indemnifying Parties; (ii) The power and authority to negotiate and resolve with the Indemnified Parties the determination of the components of Closing Cash Consideration; (iii) The power to give or receive any matter notice or instruction permitted or required under this Agreement or the Escrow Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, to be given or received by any Indemnifying Party, and each of them (other than notice for service of process relating to any Action before a court or other tribunal of competent jurisdiction, which notice must be given to each Indemnifying Party individually, as applicable), and to take any and all action for and on behalf of Indemnifying Parties, and each of them, under this Agreement, the Escrow AgreementAgreement or any other such agreement, document or instrument; (iv) The power (subject to the Credit Agreement provisions of Section 8.6(c)) to contest, negotiate, defend, compromise or settle any Indemnification Claims or Actions for which an Indemnified Party may be entitled to indemnification through counsel selected by the Member Representative and solely at the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing cost, risk and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf expense of the MembersIndemnifying Parties, (x) directing the Escrow Agent authorize payment to make payment any Indemnified Party of any of the Escrow Funds Fund, or any portion thereof, in accordance with Section 2.14satisfaction of any Indemnification Claims, Article 12 and the Escrow Agreement, (y) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of of, and complying demand arbitration and comply with orders of courts and awards of arbitrators with respect to Section 2.14such Indemnification Claims, Article 12 resolve any Indemnification Claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Indemnifying Party or necessary in the Escrow Agreement and (z) acting judgment of the Member Representative for the Members with regard to accomplishment of the foregoing and all matters pertaining to indemnification pursuant to Section 2.14of the other terms, Article 12 conditions and limitations of this Agreement and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons ; (v) granting any consentThe power to consult with legal counsel, approval or waiver on behalf independent public accountants and other experts selected by it, solely at the cost and expense of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Indemnifying Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with the Represented Documents in writing.;
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