Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement. (b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. (c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative. (d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement. (e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative. (f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Registration Rights Agreement (Goelet LLC), Registration Rights Agreement (Pogo Producing Co)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% As of the Registrable Securities at such time (Effective Time, without further act of any holder of Company Shares, the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote as agent and attorney-in-fact for each holder of Majority HoldersCompany Shares, such appointment to become effective upon give and receive notices and communications and to take any and all action on behalf of the written acceptance thereof holders of Company Shares pursuant to this Agreement and in connection with the Parent Notes, including, but not limited to, asserting, prosecuting or settling any claim against the Surviving Corporation or Parent or defending or settling any claim asserted by the new Surviving Corporation or Parent. Such Shareholder Representative may be changed by the consent of holders representing a majority of the Company Shares immediately prior to the Effective Time from time to time upon written notice given to the Surviving Corporation and the Shareholder Representative. Any failure vacancy in the position of Shareholder Representative may be filled by the Majority Holders remaining Shareholder Representative, if any, subject to appoint the right of holders representing a new majority of the outstanding Company Shares immediately prior to the Effective Time to replace any Shareholder Representative upon so appointed. No bond shall be required of the death, resignation Shareholder Representative. Notices or removal of communications to or from the Shareholder Representative shall not have the effect of releasing the Shareholders constitute notice to or from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf each of the Shareholders, except as expressly provided hereinholders of Company Shares. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled liable to any fee, commission Shareholder or other compensation Person for any action taken, or declined to be taken, in good faith and in the performance exercise of reasonable judgment.
(b) A decision, act, consent or instruction of the Shareholder Representative (acting in its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred capacity as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this AgreementRepresentative) shall constitute a decision of all the holders of Company Shares and shall be final, binding and conclusive upon each of such holders, and the Surviving Corporation and Parent may rely upon any instrumentsuch decision, agreement act, consent or document relating hereto or thereto, and in exercising or failing to exercise all or any instruction of the powers conferred upon the Shareholder Representative hereunderas being the decision, act, consent or instruction of each such holder of Company Shares.
(c) $250,000 from the aggregate Cash Consideration Per Share shall be placed by Parent at Closing into an escrow account (the "Shareholder Representative Holdback Account") with Park Cities Bank, Dallas, Texas (the "Holdback Escrow Agent"), which amount shall be made available for use by the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys'including, accountants' and other experts' or consultant's fees and without limitation, the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions costs of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunderHoldback Escrow Agent and legal fees, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken incurred by the Shareholder Representative in fulfilling the duties of such position hereunder, including without limitation those duties set forth in Section 7.7 hereof. Any funds remaining in the Shareholder Representative Holdback Account on the date of the last payment payable under the Parent Notes shall be distributed on a Pro Rata Basis to holders of Company Shares who have duly surrendered or who may duly surrender their Company Stock Certificates pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersSection 2.5(b).
Appears in 2 contracts
Samples: Merger Agreement (Medsolutions Inc), Agreement and Plan of Merger (Eriksen Rochelle K.)
Shareholder Representative. By the execution and delivery of -------------------------- this Agreement, including counterparts hereof, each Stockholder hereby irrevocably constitutes and appoints Xxxxxx Xxxxxxxxxx III as the true and lawful agent and attorney-in-fact (areferred to in this Agreement as the "Representative") The Shareholders agree to appoint one Person of such Stockholder with full powers of substitution to act as their representativein the name, attorney in fact place and proxy stead of such Stockholder with respect to certain the performance on behalf of such Stockholder under the terms and provisions of this Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including without limitation the power:
(i) to receive, hold and deliver to Central any of the certificates representing the Shares and any other documents relating thereto on behalf of such Stockholder;
(ii) to receive on behalf of such Stockholder any shares of Central Common Stock issued or cash paid to such Stockholder pursuant to this Agreement;
(iii) to execute and deliver all Ancillary Agreements, certificates, and documents which the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by the terms and provisions of this Agreement;
(iv) to act for such Stockholder with respect to all indemnification matters specified referred to in this Agreement, including the right to compromise or settle any such claims on behalf of such Stockholder;
(v) to amend or waive any provision of this Agreement (including any condition to Closing) in any manner which does not differentiate among the Stockholders;
(vi) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as Representative and to rely on their advice and counsel;
(vii) to incur any expenses, to liquidate and withhold assets received on behalf of the Stockholders prior to their distribution to the Stockholders to the extent of any amount which the Representative deems necessary for payment of or as a reserve against expenses, and to pay such expenses or to deposit the same in an interest-bearing bank account established for such purpose;
(viii) to receive all notices, communications and deliveries hereunder on behalf of such Stockholder under this Agreement; and
(ix) to do or refrain from doing any further act or deed on behalf of such Stockholder which the Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Stockholders could do if personally present and acting and as though any reference to a Stockholder or the Stockholders in this Agreement (were a reference to the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% appointment of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holdersdeemed coupled with an interest and shall be irrevocable, such appointment to become effective and Central and any other person may conclusively and absolutely rely, without inquiry, upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal any action of the Shareholder Representative as the act of the Stockholders in all matters referred to in this Agreement. Each Stockholder hereby ratifies and confirms all that the Representative shall do or cause to be done by virtue of his appointment as Representative of such Stockholder. The Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Stockholders, but the Representative shall not have be responsible to any Stockholder for any loss or damage any Stockholder may suffer by reason of the effect performance by the Representative of releasing the Shareholders from any liability his duties under this Agreement.
(b) The Shareholder , other than loss or damage arising from willful misconduct in the performance of his duties under this Agreement. Each of the Stockholders hereby expressly acknowledges and agrees that the Representative is authorized to act on behalf of such Stockholder notwithstanding any dispute or disagreement among the Stockholders, and that Central shall have such powers be entitled to rely on any and authority as are necessary to carry out all action taken by the functions assigned to the Shareholder Representative under this AgreementAgreement without liability to, or obligation to inquire of, any of the Stockholders. If the Representative resigns or ceases to function in such capacity for any reason whatsoever, then the Stockholder which held a majority of the Shares on the date hereof shall appoint a successor; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 if for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnifyreason no successor has been appointed within thirty (30) days, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of then any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company Stockholder shall have the right to rely conclusively upon petition a court of competent jurisdiction for appointment of a successor. The Stockholders do hereby jointly and severally agree to indemnify and hold the Representative harmless from and against any and all instructionsliability, requestsloss, consentscost, elections and other actions taken damage or omitted to be taken by expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the Shareholder Representative pursuant to performance of its duties under this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersexcept for willful misconduct.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Central Garden & Pet Company), Agreement and Plan of Reorganization (Pennington Brooks Iii)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representativeEach of the Equityholders, attorney in fact and proxy with respect to certain matters specified in by virtue of the adoption of this Agreement (and thereby the "Merger by the Company Shareholder Representative"). The parties have designated GoeletApproval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority HoldersGF Private Equity Group, such appointment to become effective upon LLC hereby accepts its appointment) as the written acceptance thereof by true, exclusive and lawful agent and attorney-in-fact (the new “Shareholder Representative. Any failure ”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the Majority Holders terms and provisions of this Agreement, and to appoint a new Shareholder Representative upon act on behalf of the deathEquityholders in any Proceeding involving this Agreement, resignation to do or removal of refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall not have deem necessary or appropriate in connection with the effect transactions contemplated by this Agreement, including the power:
(i) to 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 releasing the Company Shareholders 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 Shareholder 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 Shareholder 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 liability further act or deed on behalf of the Equityholders that the Shareholder 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.
(b) The Shareholder Representative shall have such powers may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders 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 authority as are necessary to carry out the functions assigned to any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation in all matters referred to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to rely on it by any directions received from other person other than itself without being required to determine the Majority Holdersauthenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative shallmay act in reliance upon any signature believed by it to be genuine, at and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the expense Equityholders on all of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary matters set forth in connection with exercising their powers and performing their function hereunder and (this Agreement in the absence of bad faith on manner the part Shareholder Representative believes to be in the best interests of the Shareholder Representative) shall be entitled to conclusively rely on Equityholders and consistent with the opinions and advice of such Persons.
(c) The obligations under this Agreement, but the Shareholder Representative shall not be entitled responsible to the Equityholders for any fee, commission or other compensation for Damages the Equityholders may suffer by the performance of its services hereunderduties under this Agreement, but other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to the reimbursement recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholders of all his, her or its fees and expenses incurred as Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, the terms hereof (including the hiring of legal counsel or advisors and any instrument, agreement or document relating hereto or thereto, the incurring of legal fees and in exercising or failing to exercise all or any of the powers conferred upon other costs) from the Shareholder Representative hereunder, Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall incur no responsibility whatsoever to any indemnify and hold harmless and shall reimburse Shareholder by reason Representatives from and against such Equityholder’s ratable share of any error in judgment or other act or omission performed or omitted hereunder or any such other agreementand all liabilities, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against expenses suffered or incurred by the Shareholder Representative, of any nature whatsoever, Representative arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of resulting from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and any instrument, agreement or document relating hereto, all it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of which actions or omissions shall be legally binding upon all the Shareholderssuch counsel.
Appears in 2 contracts
Samples: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement
Shareholder Representative. (a) The Shareholders agree D. E. Shaw Composite Side Pocket Series I, L.L.C. is hereby appointed to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC serve as the initial Shareholder RepresentativeRepresentative with respect to the matters expressly set forth in this Article X and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein. Effective only upon the Effective Time, the Shareholder Representative (including any successor or successors thereto) shall act as the representative of the Former Company Stockholders, and shall be authorized to act on behalf of the Former Company Stockholders and to take any and all actions required or permitted to be taken by the Shareholder Representative under this Article X with respect to any claims (including the settlement thereof) made by any Buyer Indemnitee for indemnification pursuant to this Article X (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Shareholder Representative may resign at any time, shall be the only party entitled to assert the rights of the Former Company Stockholders hereunder and a the Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% shall perform all of the Registrable Securities at such time obligations (the "Majority Holders"). In the event other than payment) of the deathFormer Company Stockholders under this Article X. Any Person shall be entitled to rely on all statements, resignation or removal representations and decisions of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Former Company Stockholders shall be bound by all actions taken by the Shareholder Representative in his, her or its capacity thereof. The Shareholder Representative shall promptly, and in any event within 10 Business Days, provide written notice to the Former Company Stockholders of any action taken on behalf of them by the Shareholder Representative pursuant to the authority delegated to the Shareholder Representative under this Article X. Neither the Shareholder Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Shareholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement.
(c) Each Former Company Stockholder shall, severally and not jointly, hold harmless and reimburse the Shareholder Representative from and against such powers Former Company Stockholder’s ratable share of any and authority as are necessary all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative) suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to carry out the functions assigned to be taken by the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf such Former Company Stockholder shall be so liable in excess of such Former Company Stockholder’s pro rata portion of the Shareholders, except as expressly provided hereinMerger Consideration. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and services in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativecapacity.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Shareholder Representative. (a) The By virtue of their approval of the Transaction and execution of this Agreement, each of the Shareholders agree shall be deemed to have agreed to appoint one Person Partech International Partners SAS as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to act as their representativegive and receive notices and communications, attorney to authorize payment to any Purchaser Indemnified Party from the Escrow Fund in fact satisfaction of claims by any Purchaser Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of any Disputes, and demand resolution or Disputes in accordance with Section 11.8 and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Purchaser Indemnified Party against any Shareholder or by any such Shareholder against any Purchaser Indemnified Party or any Dispute between any Purchaser Indemnified Party and any such Shareholder, in each case relating to certain matters specified in this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at not be removed or any timechange to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, and a vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). The Shareholder Representative shall have the right to withhold Shareholder Representative Expenses actually incurred from its distribution of the Escrow Fund to the acts Shareholders, provided that a certificate setting forth the Shareholder Representative Expenses actually incurred accompanies any such distribution. A decision, act, consent or omissions instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. The foregoing indemnification shall not apply in the event of Escrow Agent and Purchaser are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any Person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as Selling Parties, by virtue of their representativeexecution and delivery of this Agreement or, attorney in fact and proxy with respect to certain matters specified in Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and the Merger by the Shareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, IBF (together with its permitted successors, the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timetheir true and lawful agent and attorney-in-fact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative by its execution of this Agreement shall be appointed by a vote of Majority Holdersdeemed to have accepted such appointment, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from enter into any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on transactions contemplated by this Agreement or the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Escrow Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers powers, authority and discretion conferred upon on it under any such agreement, to act as proxy for each Selling Party in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement (other than payment of the Merger Consideration due at Closing), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of and claim, action or proceeding for which any Shareholder, Purchaser, or the Merger Sub may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of stockholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company voting stock (considered on an as converted basis), or (ii) in the absence of its own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, its successor shall be named by those persons holding a majority of the shares of Company voting stock outstanding immediately prior to the Effective Time who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any actions taken by the Shareholder Representative in its capacity as such, the Shareholder Representative shall incur have no responsibility whatsoever liability to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder Purchaser, the Company or any such other agreement, instrument or document, excepting only responsibility of their respective affiliates except for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata claims based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' fraud or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any bad faith actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Acquisition Agreement (Ibf Vi Guaranteed Income Fund), Acquisition Agreement (Sunset Brands Inc)
Shareholder Representative. 4.1. By virtue of the execution or adoption of this Agreement, each Shareholder irrevocably approves the constitution and appointment of, and hereby irrevocably constitutes and appoints Nxxx Xxxxx (athe “Shareholder Representative”) The Shareholders agree to appoint one Person to act with all the rights, powers and obligations contemplated by this Section 4, and any successor Shareholder Representative(s) designated under this Section 4 as their representativethe sole, attorney in exclusive, true and lawful agent, representative and attorney-in-fact for and proxy on behalf of all Shareholders, and each of them, with respect to certain any and all matters specified arising out of or in connection with this Agreement (excluding pursuant to Section 10.2), the "Paying Agent Agreement, the Escrow Agreement and the agreements ancillary hereto following the Closing and taking any action or omitting to take action on behalf of all Shareholders or each of them hereunder or under the Escrow Agreement or the Paying Agent Agreement. All actions, notices, communications and determinations by or on behalf of the Shareholders in accordance herewith shall be given or made by the Shareholder Representative and all such actions, notices, and determinations by the Shareholder Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any and all Shareholders.
4.2. Without limiting the generality of the foregoing, the Shareholder Representative shall have full power and authority to: from and after the Closing, direct the Paying Agent to disburse amounts paid to the Paying Agent in accordance with the Waterfall and this Agreement, and such portion of the Escrow Amount as is remaining at the end of the escrow period contemplated under Section 2.8, in accordance with the Waterfall and in accordance with the terms and conditions of this Agreement and the Escrow Agreement; to negotiate and sign all documents in connection with the Transaction and amendments thereto, whether before or after Closing (including, without limitation, Escrow Agreement, the Payment Agent Agreement, share transfer deeds and endorsements and termination instruments and including amendments that may require price reductions or holdbacks); and to grant, provide, negotiate and sign all waivers, consents, instructions and authorizations and to take all other actions called for under or contemplated by or that may otherwise be necessary or appropriate in connection with the Transaction Documents; and to prosecute, defend and settle in the Shareholder Representative")’s discretion all indemnification disputes (including hiring counsel and other litigation assistance and including in court of law or any other legal proceeding) and to receive all notices, requests and demands that may be made under and pursuant to this Agreement, the Paying Agent Agreement and the Escrow Agreement. The parties have designated GoeletFrom and after the Closing, LLC as the initial Purchaser shall be entitled to deal exclusively with the Shareholder RepresentativeRepresentative in respect of any matter arising under the Transaction Documents, and the Shareholders, in their relationship with the Purchaser, shall be bound by all actions taken by the Shareholder Representative in connection with such matters. By virtue of executing or adopting this Agreement, each Shareholder agrees to ratify and confirm, and hereby ratifies and confirms, any action taken by the Shareholder Representative in the exercise of the power of attorney granted to the Shareholder Representative pursuant to this Section 4.2, which power of attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of each such Shareholder.
4.3. The Shareholder Representative may resign at any time. Should the Shareholder Representative die, and become legally incapacitated or bankrupt, dissolve, liquidate or otherwise similarly be unable or unwilling to serve or to appoint his or her successor to serve in his or her stead, the Shareholders who have held, immediately prior to the Closing, the majority of the voting power of the Company on an as converted basis shall designate in writing to Purchaser within five (5) Business Days a single Person to replace the deceased or legally incapacitated or otherwise similarly unable Shareholder Representative as the successor Shareholder Representative hereunder. If at any time there shall not be a Shareholder Representative and the Shareholders fail to designate in writing a successor Shareholder Representative within five (5) Business Days after receipt of a written request delivered by Purchaser to the Shareholders requesting that a successor Shareholder Representative be designated, then Purchaser may be removed at any time by petition a court of competent jurisdiction to appoint a Shareholder to act as new Shareholder Representative hereunder. The Shareholder Representative’s engagement shall terminate following the vote completion of Shareholders who collectively own more than 50% all the Shareholder Representative’s responsibilities under this Agreement (including with respect to potential or contingent liabilities of the Registrable Securities at such time (Shareholders hereunder).
4.4. The Shareholder Representative shall not be liable to the "Majority Holders")Shareholders for any act done or omitted hereunder in its capacity as the Shareholder Representative, except to the extent caused by its willful misconduct, gross negligence or bad faith. In all questions arising in respect of any matter arising under this Agreement, the event Shareholder Representative may rely on the advice of counsel and any action based upon such reliance shall relieve the deathShareholder Representative of any liability hereunder. The Shareholders shall severally and not jointly (based on each Shareholder’s pro rata share in accordance with the Waterfall compared to the pro rata shares of all Shareholders signing this Agreement or otherwise bound hereby; provided that, resignation or removal for the avoidance of doubt, in all cases the aggregate of the Shareholder Representative, a new ’s indemnity coverage from the Shareholders signing this Agreement or otherwise bound hereby shall sum to 100%) indemnify and defend the Shareholder Representative shall be appointed by a vote and hold the Shareholder Representative harmless against any loss, liability, deficiency, damage, cost, claim, penalty, fine, forfeiture, or expense (including the fees and expenses of Majority Holderscounsel and experts and their staffs and all expense of document location, such appointment to become effective upon the written acceptance thereof duplication and shipment), or actions incurred by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon and arising out of or in connection with the deathacceptance, resignation performance or removal administration of the Shareholder Representative’s duties hereunder and under the Transaction Documents (collectively, “Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Losses”), in each case as such Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this AgreementLoss is suffered or incurred; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, willful misconduct, gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, willful misconduct, gross negligence or bad faith. If not paid directly to the Shareholder Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund, (ii) the funds in the Escrow Amount at such time as such amounts would otherwise be distributable to the Shareholders, and (iii) any other funds that become payable to the Shareholders under this Agreement at such time as such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-recourse parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement (including in Section 10.8) are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section 4.4.
4.5. The Purchaser shall incur no responsibility whatsoever not be liable to any Shareholder by reason of for any error in judgment or other act or omission performed done or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, by the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and Representative.
4.6. A total of US$100,000 shall be withheld from amounts otherwise payable at Closing to the amount Shareholders contributed by the Purchaser on behalf of any judgment against the Shareholders to the Escrow Agent for an account maintained by the Escrow Agent for the benefit of the Shareholder Representative, for the Escrow Agent to hold on behalf of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions Shareholders as a fund for the fees and expenses of the Shareholder Representative hereunderincurred in connection with this Agreement and the agreements ancillary hereto (the “Expense Fund”). All amounts deposited to the Expense Fund shall be treated for all purposes as having been paid at Closing to the Shareholders and received and voluntarily set aside by the Shareholders at Closing. The foregoing indemnification shall Shareholders will not apply in receive any interest or earnings on the event of any action or proceeding which finally adjudicates the liability of Expense Fund and irrevocably transfer and assign to the Shareholder Representative hereunder any ownership right they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for his or her any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. In The Shareholder 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 any indemnification hereunder, upon written notice from bankruptcy. The amounts deposited in the Expense Fund shall be available for the payment of all fees and expenses reasonably incurred by the Shareholder Representative in performing its duties under this Agreement and the agreements ancillary hereto; provided that any portion of the Expense Fund not ultimately required for the payment of such fees and expenses shall be delivered by the Escrow Agent to the Paying Agent for further distribution to the Shareholders as to based on the existence of a deficiency toward Waterfall following the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification completion of the Shareholder Representative.
(d) ’s responsibilities. All of amounts remaining in the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the Expense Fund upon termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative’s engagement (and following the completion of the Shareholder Representative’s responsibilities) shall also be delivered by the Escrow Agent to the Paying Agent for further distribution to the Shareholders based on the Waterfall.
(f) The 4.7. To the extent required in order for the Company shall have to exercise rights on behalf of the Shareholders prior to Closing pursuant to this Agreement, including the exercise of the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken waive rights or omitted to be taken by the Shareholder Representative termination this Agreement pursuant to Section 3 above, the provisions of this Agreement and any instrumentSection 4 shall apply, agreement or document relating heretomutatis mutandis, all of which actions or omissions shall be legally binding upon all to the ShareholdersCompany (as if it was a Shareholder Representative).
Appears in 2 contracts
Samples: Share Purchase Agreement (Oddity Tech LTD), Share Purchase Agreement (Oddity Tech LTD)
Shareholder Representative. The shareholders of Data Labs, by virtue -------------------------- of their approval of the Agreement under the Delaware Corporation Law, shall be deemed to have irrevocably constituted and appointed Xxxxx Xx, Xxxxx Xxxxx and Xxxxxx Xxxxx as a committee, effective as of the Effective Time (a) The Shareholders agree to appoint one Person to act together with such person's permitted successors, the "SHAREHOLDER REPRESENTATIVE"), as their representative, attorney in true and lawful agent and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at enter into any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers the transactions contemplated by this Agreement, including, without limitation, the resolution of indemnity claims under Article IX hereof and performing their function hereunder and (in accordance with the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Escrow Agreement, and any instrumenttransactions contemplated by the Escrow Agreement, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers powers, authority and discretion conferred upon on it under any such agreement, to waive any terms and conditions of any such agreement (other than the consideration to be received by the Data Labs shareholders in the Merger), to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or proceeding for which Yurie or the Company may be entitled to indemnification and the Shareholder Representative hereunderagrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The members constituting the Shareholder Representative shall incur no responsibility whatsoever to any act by majority vote or consent. The Shareholder 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 Representative shall not be liable for any act action taken or failure to act which represents not taken by it in connection with its obligations under this Agreement (i) with the consent of shareholders who, as of the Effective Time, owned a majority in number of the outstanding shares of Data Labs Common Stock (treating the Data Labs Preferred Stock on an as converted basis) or (ii) in the absence of its own gross negligence or willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, If one or more of the members of the committee acting as the Shareholder Representative against all lossesshall be unable or unwilling to serve in such capacity, damagesany successor thereof shall be named by those persons holding two-thirds of the outstanding shares of the Data Labs Common Stock (treating Data Labs Preferred Stock on an as-converted basis) at the Effective Time, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against successor(s) so named shall serve and exercise the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions powers of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event If such committee is composed of any action or proceeding which finally adjudicates the liability one person and no other members thereto are so named within 30 days of the Shareholder Representative hereunder for his resignation or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share termination of the amount last resigning member thereof, the remaining member of such deficiency, in accordance with such Shareholder's percentage interest. In no event committee shall the Company be responsible for any reimbursement or indemnification of serve as the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Merger Agreement (Yurie Systems Inc), Merger Agreement (Yurie Systems Inc)
Shareholder Representative. (a) The Shareholders Each of the Company Indemnifying Persons hereby appoints OrbiMed Israel Partners, Limited Partnership, as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Company Indemnifying Persons to give and receive notices and communications, to authorize settlements from the Escrow Shares in satisfaction of Losses incurred by the Innovate Indemnified Parties and to resolve disputes with respect thereto, to object to claims for indemnification, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all other actions that are either (i) necessary or appropriate in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as judgment of the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time for the accomplishment of the foregoing or (ii) specifically mandated or allowed by the vote terms of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders")this Agreement. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representatives’ shall constitute notice to or from the Shareholders from any liability under this AgreementCompany Shareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary to carry out in the functions assigned to exercise of reasonable judgment. The Company Indemnifying Persons shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative.
(c) A decision, investigationact, challengeconsent or instruction of the Shareholder Representative, action shall constitute a decision of the Company Indemnifying Persons and shall be final, binding and conclusive upon the Company Indemnifying Persons and Innovate may rely upon any such decision, act, consent or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in as being the event of any action decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder Indemnifying Persons. Parent is hereby relieved from any liability to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to If the Shareholder Representative under this Agreement shall survive die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of Company Shareholders, then the termination Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Shareholder Representative (by vote or written consent of the Company Shareholders holding in the aggregate Pro Rata Shares in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify Innovate in writing of the identity of such successor. Any such successor so appointed shall become the “Shareholder Representative” for purposes of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 2 contracts
Samples: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate Mxxxxxx Xxxxxx to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if Mxxxxxx Xxxxxx at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "performance of his or her duties as the Shareholder Representative"). The parties have designated GoeletThis power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, LLC as the initial Shareholder Representativeby operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative may resign at shall promptly deliver to each Sky Shareholder any timenotice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and a Shareholder Representative may other documents required or permitted to be removed at any time by given in connection with the vote of Shareholders who collectively own more than 50% consummation of the Registrable Securities at transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such time (claims, and to take all actions necessary or appropriate in the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal judgment of the Shareholder Representative shall not have for the effect accomplishment of releasing the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders from any liability under in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have such powers no duties or responsibilities except those expressly set forth herein, and authority as are necessary no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to carry out any Sky Shareholder relating to the functions assigned performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative under constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative will have no obligation shall not be entitled to act on behalf indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Shareholders, except as expressly provided hereinactions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative will at all times shall be entitled held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to rely be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any directions received from the Majority Holdersmatter. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in his capacity as such) shall not be liable to Incumaker or the absence Surviving Corporation by reason of bad faith on this Agreement or the part of performance the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons’s duties hereunder or otherwise.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but Incumaker shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 rely upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement Agreement, the Merger Note, the Guaranty and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersSecurity Agreement.
Appears in 2 contracts
Samples: Merger Agreement (RDE, Inc.), Merger Agreement (uBid Holdings, Inc./New)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to In the event that the Merger is approved, effective upon such vote, and without further act of any Company Shareholder, _________ shall be appointed as their representative, attorney in agent and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative")) for each Company Shareholder, for and on behalf of the Company Shareholders, to give and receive notices and communications, to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. The parties have designated GoeletSuch agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any timenot be removed unless holders of a two- thirds interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Shareholder Representatives, and a Shareholder Representative may be removed at any time by shall not receive compensation for his or her services. Notices or communications to or from the vote of Shareholders who collectively own more than 50% Shareholder Representatives shall constitute notice to or from each of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this AgreementCompany Shareholder.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Company Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall severally indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant shall constitute a decision of all Company Shareholders for whom a portion of the Escrow Amount otherwise issuable to this Agreement them are deposited in the Escrow Fund and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all each of such Company Shareholders, and the ShareholdersEscrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representatives as being the decision, act, consent or instruction of each and every such Company Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representatives.
Appears in 1 contract
Samples: Merger Agreement (Tut Systems Inc)
Shareholder Representative. (a) The Employers written notice delivered to the Employers Shareholders, and the resolutions adopted by the required number of Employers Shareholders agree to appoint one approve the Merger, whether at a special meeting of the Employers Shareholders or by written consents signed by the Employers Shareholders, shall state that by voting in favor of the Merger, each Employers Shareholder approves and appoints the Person to act designated in the resolutions as their representative, attorney in attorney-in-fact and proxy agent for and on behalf of the Employers Shareholders, both individually and collectively (the “Shareholder Representative”), with the power and authority to take all actions and make all decisions required or permitted by the Shareholder Representative under the terms of this Agreement, the Escrow Agreement, and all other documents, exhibits, and agreements related to such agreements or the Merger, including (i) authorization of the release or delivery to any Eastern Indemnified Person of all or any portion of the Escrow Holdback in satisfaction of indemnification claims for which such Person is entitled to indemnification under Article VIII; (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to, any claim for indemnification under Article VIII; (iii) litigation, resolution, settlement or compromise of any claim for indemnification made by any Eastern Indemnified Person pursuant to certain Article VIII; (iv) receiving all notices on behalf of each Employers Shareholder in connection with any claims or matters specified in under this Agreement or the Escrow Agreement; and (v) the "Shareholder Representative"). The parties have designated Goelet, LLC as taking of such other actions that the initial Shareholder Representative. The Shareholder Representative may resign at determines in his judgment are necessary in connection with, or for the effective exercise of, any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders")foregoing powers and authority. In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such Each Employers Shareholder’s appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative as provided in this Section 5.16 shall not have be deemed coupled with an interest surviving the effect death or disability of releasing such Employers Shareholder to the Shareholders from any liability under this Agreementextent applicable.
(b) The Shareholder Representative Each Employers Shareholder, by the approval of the Merger, shall have such powers be bound by all actions taken and authority as are necessary to carry out the functions assigned to documents executed by the Shareholder Representative under in connection with this Agreement; provided, howeverthe Escrow Agreement, that and all other documents, exhibits and agreements related to such agreements or the Shareholder Representative will have no obligation to act on behalf of the ShareholdersMerger. Eastern, except as expressly provided herein. The Shareholder Representative will at all times its Affiliates and any Eastern Indemnified Person shall be entitled to rely on any directions received from such action or document taken or executed by the Majority Holders. The Shareholder Representative.
(c) As between the Shareholder Representative shall, at and the expense Employers Shareholders:
(i) In exercising the power and authority of the ShareholdersShareholder Representative as provided in this Agreement, the Shareholder Representative shall not be entitled liable to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (any Employers Shareholder in the absence of bad faith recklessness or willful misconduct on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(cii) The Shareholder Representative shall not be entitled to rely, and shall be fully protected in relying, upon any feestatements furnished to the Shareholder Representative by any Employers Shareholder, commission or any other compensation for evidence determined by the performance of its services hereunderShareholder Representative to be reliable, but and the Shareholder Representative shall be entitled to act on the reimbursement by the Shareholders advice of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction counsel selected by the Shareholder Representative.
(fiii) The Company Shareholder Representative shall be fully justified in failing or refusing to take any action under this Agreement, the Escrow Agreement or any other document relating to the Merger unless the Shareholder Representative shall have received such advice or concurrence of such Employers Shareholders as the right Shareholder Representative determines appropriate or the Shareholder Representative shall have been expressly indemnified to rely conclusively the Shareholder Representative’s satisfaction by the Employers Shareholders severally (based upon their respective Pro Rata Shares), against all instructionsliability and expense (including reasonable attorney fees) that the Shareholder Representative may incur by reason of taking or continuing to take any such action.
(iv) The Shareholder Representative shall be entitled to retain professional advisors, requestsincluding accountants and legal counsel, consentsand to incur such other expenses as the Shareholder Representative determines to be necessary or appropriate in connection with acting as the attorney-in-fact and agent on behalf of the Employers Shareholders as authorized under Section 5.16(a), elections and all such professional and other actions taken or omitted to be taken fees and expenses incurred by the Shareholder Representative in acting in such capacity shall be borne by the Employers Shareholders severally in proportion to their respective Pro Rata Shares.
(v) The Employers Shareholders shall indemnify the Shareholder Representative, severally in proportion to their respective Pro Rata Shares, against all losses, liabilities, damages and expenses (including reasonable attorney fees) incurred by the Shareholder Representative in such capacity relating to or arising out of actions or failures to take action pursuant to or in connection with this Agreement, the Escrow Agreement or any other document relating to the Merger, except to the extent such losses, liabilities, damages and expenses are incurred as a result of the Shareholder Representative’s recklessness or willful misconduct.
(vi) Each Person appointed as the Shareholder Representative shall serve in such capacity until the earlier of such Person’s resignation or removal (with or without cause) by Employers Shareholders having more than 50% of the total Pro Rata Shares (the “Majority Employers Shareholders”). Upon the resignation or removal of a Person as the Shareholder Representative, the Majority Employers Shareholders shall appoint another Person to serve in such capacity. Each Person appointed as a Shareholder Representative shall accept such position in writing.
(d) Prior to the Effective Time, the Majority Employers Shareholders shall give Eastern written notice of the Person initially appointed as the Shareholder Representative, together with such Person’s notice address, telephone number and telecopy number. Promptly after any instrumentchange of the Shareholder Representative, the Majority Employers Shareholders shall give Eastern written notice setting forth the name, notice address, telephone number and telecopy number of the new Shareholder Representative. Until notified in writing of such a change, Eastern shall be entitled to assume that the most recent incumbent Shareholder Representative of which Eastern has written notice is the duly authorized Shareholder Representative.
(e) In exercising the Shareholder Representative’s power and authority as provided in this Agreement, the Shareholder Representative shall not be liable to Eastern or any other Eastern Indemnified Person in the absence of recklessness or willful misconduct on the part of the Shareholder Representative; provided, however, that nothing contained in this Section 5.16 shall in any way limit or prejudice the enforcement by Eastern against the Employers Shareholders or the Escrow Holdback of Eastern’s rights under this Agreement, the Escrow Agreement or any other document relating to the Merger, upon and subject to the terms and conditions of each such agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersdocument.
Appears in 1 contract
Samples: Merger Agreement (Eastern Insurance Holdings, Inc.)
Shareholder Representative. (a) The Each of the Shareholders hereby appoints the Shareholder Representative, as its agent and attorney-in-fact, for and on behalf of each of the Shareholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the "judgment of the Shareholder Representative"Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by SCG from time to time upon not less than thirty (30) days' prior written notice to the Purchaser (and each of the Management Shareholders expressly acknowledges the sole and absolute discretion of SCG to make such determination). The parties have designated Goelet, LLC as A vacancy in the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a position of Shareholder Representative may be removed at any time filled by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders")SCG. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect Shareholder Representative shall constitute notice to each of releasing the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary to carry out in the functions assigned to exercise of reasonable judgment. The Shareholders shall each indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shallLiability, at the or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative ("Shareholder Representative Expenses"). A decision, investigationact, challengeconsent, action or proceeding instruction of the Shareholder Representative, including but not limited to an amendment or in connection with waiver of this Agreement pursuant to Article VIII hereof, shall constitute a decision of each of the Shareholders and shall be final, binding and conclusive upon each of the Shareholders; and the Escrow Agent and the Purchaser may rely upon any appeal thereofsuch decision, relating to the acts act, consent or omissions instruction of the Shareholder Representative hereunderas being the decision, act, consent, or instruction of each of the Shareholders. The foregoing indemnification shall not apply in Escrow Agent and the event of Purchaser are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any Person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree Each Existing Shareholder hereby covenants and agrees that Xxxxx X. Xxxxx is hereby fully and exclusively authorized, empowered and appointed to appoint one Person to act serve as their representative, attorney in fact his sole representative and proxy with respect to certain matters specified in this Agreement agent (the "Existing Shareholder Representative"), to take any and all actions, with respect to the execution, delivery and performance of the Escrow Agreement, dated as of the Closing Date, by and among City, Xxxxx, Xxxxx X. Xxxxx and SouthTrust Bank ("Escrow Agreement"), and to make any and all decisions and determinations, which may be required or permitted to be taken or made pursuant to any of the provisions of the Escrow Agreement by the Existing Shareholders, to perform all of the obligations of the Existing Shareholders required or permitted to be performed thereunder, and to execute, deliver and perform on behalf of the Existing Shareholders any and all amendments thereto. The parties have designated GoeletAny such action, LLC as decision or determination taken or made by the initial Shareholder Representative. The Existing Shareholder Representative may resign at and any timesuch amendment, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holdersabsolutely and irrevocably binding on each Existing Shareholder as if such Existing Shareholder had personally taken such action or made such decision or determination in his individual (or, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the deathas applicable, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreementfiduciary) capacity.
(b) The Each Existing Shareholder hereby irrevocably makes, constitutes and appoints the Existing Shareholder Representative shall have such powers as his true and lawful proxy and attorney-in-fact, with full power of substitution, to act with respect to the Escrow Agreement. By granting this proxy, the Existing Shareholder hereby revokes any other proxy granted by him to vote or act by written consent with respect to the Escrow Agreement. All power and authority as are necessary to carry out hereby conferred by the functions assigned to the Existing Shareholder Representative under in this Agreement; providedsubsection (b) is coupled with an interest and is irrevocable, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to terminated by any feeact of the Existing Shareholder or by operation of law, commission by death, incapacity or dissolution, by lack of appropriate power or authority, or by the occurrence of any other compensation for the performance of its services hereunderevent or events, but and shall be entitled to binding upon all beneficiaries, heirs, legatees, distributees, successors, assigns and legal representatives of such Existing Shareholder. If after the reimbursement by execution of the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Escrow Agreement, and an Existing Shareholder shall die or become incapacitated or cease to have appropriate power or authority, or if any instrument, agreement other such event or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative hereunderevents shall occur, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Existing Shareholder Representative, of any nature whatsoeveracting as provided herein, arising out of or in connection is nevertheless authorized to act with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating respect to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, Escrow Agreement) in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification terms of the Shareholder RepresentativeEscrow Agreement as if such death, incapacity, lack of appropriate power or authority or other event or events had not occurred and regardless of notice thereof.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Asset Contribution Agreement (City Truck Holdings Inc)
Shareholder Representative. (amm) The Shareholders agree to appoint one Person By approving this Agreement and the Transactions or by executing and delivering a Shareholder Letter of Transmittal or an Optionholder Transmittal Letter, each Shareholder or Optionholder shall have irrevocably authorized and appointed Shareholder Representative as such Person’s representative and attorney-in-fact to act as their representative, attorney in fact and proxy on behalf of such Person with respect to certain matters specified in this Agreement and the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Shareholder Representative pursuant to this Agreement or the Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Parent of cash from the "Purchase Price Adjustment Escrow Fund in satisfaction of any amounts owed to Parent pursuant to Section 2.17;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.17;
(iv) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Escrow Agreement);
(v) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Escrow Agreement);
(vi) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and
(vii) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing. Parent shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement and 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 Shareholder or Optionholder by Shareholder Representative"), and on any other action taken or purported to be taken on behalf of any Shareholder or Optionholder by Shareholder Representative, as being fully binding upon such Person. The parties Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders and Optionholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and Optionholders and shall be final, binding and conclusive upon each such Person. No Shareholder or Optionholder shall have designated Goeletthe right to object to, LLC as dissent from, protest or otherwise contest the initial same. No Person will have any cause of action against Parent, the Surviving Corporation, or any of their Representatives for any action taken by Parent in reliance upon any decision, act, consent, waiver or instruction of Shareholder Representative; and Parent is hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of Shareholder Representative. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders or Optionholders, or by operation of Law, whether by death or other event. Notwithstanding anything to the contrary herein, Shareholder Representative shall have no authority to bind any Shareholder or Optionholder to any payment or obligation that would create any liability beyond the Escrow Fund and the Shareholder Representative Expense Amount. (nn) Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time Shareholders and Optionholders according to each Shareholder’s and Optionholder’s Pro Rata Share (the "“Majority Holders"”); provided, however, in no event shall Shareholder Representative resign or be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Parent, such appointment to become be effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal later of the Shareholder Representative shall not have date indicated in such consent or the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have date such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementnotice is received by Parent; provided, howeverthat until such notice is received, that Parent, Merger Sub and the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Surviving Corporation shall be entitled to rely on any directions received from the Majority Holders. The decisions and actions of the prior Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary described in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such PersonsSection 9.01(a).
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Corelogic, Inc.)
Shareholder Representative. (a) The By virtue of their approval of the Merger, each Securityholder designates and appoints the Shareholder Representative as such Securityholder’s agent and attorney-in-fact with full power and authority to act for and on behalf of each Securityholder to give and receive notices and communications, to accept service of process on behalf of the Shareholders pursuant to Section 9.4(f) and Section 11.11, to authorize and agree to appoint one Person adjustments to act as their representativethe Merger Consideration under Sections 2.6 and 2.7 and other applicable provisions of this Agreement, attorney in fact to agree to, negotiate, enter into settlements and proxy compromises of, and comply with Judgments of courts or other Governmental Authorities and awards of arbitrators, with respect to, any claims by any Purchaser Indemnified Party against any Shareholder or by any Shareholder against any Purchaser Indemnified Party, or any other dispute between any Purchaser Indemnified Party and any Securityholder, in each case relating to certain matters specified in this Agreement or the transactions contemplated by this Agreement and to take all actions that are either (i) necessary or appropriate in the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal judgment of the Shareholder Representative shall not have for the effect accomplishment of releasing the Shareholders foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from any liability the Shareholder Representative constitute notice to or from each of the Securityholders for all purposes under this Agreement.
(b) The Shareholder Representative shall have such powers and may delegate its authority as are necessary Shareholder Representative to carry out any one of the functions assigned Shareholders for a fixed or indeterminate period of time upon not fewer than 10 Business Days’ prior written notice to the Shareholder Representative under this Agreement; provided, however, that Purchaser in accordance with Section 11.2. In the Shareholder Representative will have no obligation to act on behalf event of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part death or incapacity of the Shareholder Representative) shall , a successor Shareholder Representative will be entitled to conclusively rely on elected promptly by the opinions Shareholders whose interests aggregate not less than a majority of the Net Notional Merger Consideration and advice the Securityholders will so notify the Purchaser. Each successor Shareholder Representative has all of such Personsthe power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used in this Agreement includes any successor Shareholder Representative.
(c) The Shareholder Representative shall not be entitled to any feeA decision, commission act, consent or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in constitutes a decision of all the event of Securityholders and is final, binding and conclusive upon the Securityholders, and the Purchaser and any action Indemnified Party may rely upon any such decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder for his as being the decision, act, consent or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share instruction of the amount of such deficiency, Securityholders. The Purchaser is hereby relieved from any Liability to any Person for any acts done or omissions by the Purchaser in accordance with such Shareholder's percentage interestdecision, act, consent or instruction of the Shareholder Representative. In no event shall Without limiting the Company be responsible for generality of the foregoing, the Purchaser is entitled to rely, without inquiry, upon any reimbursement document delivered by the Shareholder Representative as being genuine and correct and having been duly signed or indemnification of sent by the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted The Shareholder Representative will have no Liability to any Person for any act done or omitted under this Agreement as the Shareholder Representative while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Securityholders will severally indemnify and hold harmless the Shareholder Representative from and against any Losses the Shareholder Representative may suffer as a result of any such action or omission.
(e) The Shareholder Representative will receive no compensation for services as the Shareholder Representative. The Securityholders will reimburse, on a pro rata basis in proportion to their interest in the Merger Consideration, the Shareholder Representative for professional fees and expenses of any attorney, accountant or other advisors retained by the Shareholder Representative and other reasonable out-of-pocket expenses incurred by the Shareholder Representative in connection with the performance of the Shareholder Representative’s duties under this Agreement shall survive the termination of this Agreement.
(ef) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out This appointment and grant of any actions taken or any inaction power and authority by the Shareholder Representative.
(f) The Company shall have the right Securityholders to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement Section 11.1 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the act of any instrumentShareholder or by operation of Law, agreement whether upon the death or document relating heretoincapacity of any Shareholder, all or by the occurrence of which actions or omissions shall be legally binding upon all the Shareholdersany other event.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person Shareholder Representative shall act as the representative of the Model Shareholders, and shall be authorized to act as their representativeon behalf of the Model Shareholders and to take any and all actions required or permitted to be taken by the Shareholder Representative under this Agreement, attorney in fact and proxy with respect to certain matters specified in any claims (including the settlement thereof) made by E Com for indemnification or to be held harmless pursuant to this Agreement (the "Shareholder Representative")Article 8. The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Model Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed bound by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof all actions taken by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreementin its capacity thereof.
(b) The Shareholder Representative shall at all times act in his or her capacity as Shareholder Representative in a manner that the Shareholder Representative believes in good faith to be in the best interest of the Model Shareholders. Neither the Shareholder Representative nor any of its agents shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Shareholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement, the Shareholder Representative shall not be required to exercise any discretion or take any action.
(c) Each Model Shareholder severally shall indemnify and hold harmless and reimburse the Shareholder Representative from and against such powers Model Shareholder’s ratable share of any and authority as are necessary all Losses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken, or omitted to carry out the functions assigned to be taken, by the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage other than such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, Losses arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of resulting from the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her Representative’s gross negligence negligence, bad faith or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Each Shareholder hereby irrevocably authorizes, constitutes and appoints the Person identified in Exhibit 12 attached hereto as such “Shareholder Representative” as such Shareholder’s representative (“Shareholder Representative”) and such Shareholder’s true and lawful attorney in fact, to act as their representative, attorney on such Shareholder’s behalf in fact and proxy the absolute discretion of Shareholder Representative with respect to certain all matters specified in relating to this Agreement, including execution and delivery of any amendment, supplement, or modification of this Agreement and any other Transaction Document and any waiver of any claim or right arising out of this Agreement and giving and receiving all notices pursuant to this Agreement; and in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to effectuate the provisions of this Section 5.09 (the "Shareholder Representative"), including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer;
(iii) litigate, arbitrate, resolve, settle or compromise any claim for indemnification or Earn Out Payments;
(iv) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement, including the Escrow Agreement;
(v) make all elections or decisions contemplated by this Agreement and any Transaction Document; and,
(vi) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing
(b) Buyer shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement and 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 Shareholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Buyer relating to the defense, payment or settlement of any claims for indemnification hereunder or the amount of any Earn Out Payments, shall constitute a decision or action of all Shareholders and shall be final, binding and conclusive upon each such Person. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The parties have designated Goeletprovisions of this Section, LLC as including the initial Shareholder Representative. power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any Shareholder, either individually or collectively, or by operation of Law, whether by death or other event.
(c) The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time Shareholders according to each Shareholder’s percentage ownership in the Company immediately prior to the First Closing (the "“Majority Holders"”); provided, however, in no event shall Shareholder Representative resign or be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a the vote or written consent of the Majority Holders. The Shareholders acknowledge and agree that, if a Shareholder is available that is also an employee of the Company, any Shareholder Representative appointed hereunder must at the time of such appointment be an employee of the Company and shall be deemed to have immediately resigned such appointment upon the effective date of any cessation of employment with the Company. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to become be effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal later of the Shareholder Representative shall not have date indicated in such consent or the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have date such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementnotice is received by Buyer; provided, howeverthat until such notice is received, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Buyer shall be entitled to rely on any directions received from the Majority Holders. The decisions and actions of the prior Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary described in connection with exercising their powers and performing their function hereunder and subsection (in the absence of bad faith on the part of the Shareholder Representativeb) shall be entitled to conclusively rely on the opinions and advice of such Personsabove.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The By virtue of the approval of the Acquisition and this Agreement by the Shareholders, each of the Shareholders agree shall be deemed to have agreed to appoint one Person Xxxx Xxx as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to act as their representativegive and receive notices and communications, attorney to authorize payment to any Indemnified Party from the Escrow Fund in fact satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any timenot be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, and a vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of the Escrow Period, investigationthe resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, challenge, action or proceeding or in connection with the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any appeal thereof, relating distribution to the acts Shareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A decision, act, consent or omissions instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Scheme Shareholders; and the Escrow Agent and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. The foregoing indemnification shall not apply in the event of Escrow Agent and Purchaser are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (aA) The Shareholders agree to irrevocably make, constitute and appoint one Person to act Xxxxxx X. Xxxxxxxx as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement agent (the "Shareholder Representative"). The parties have designated Goelet, LLC as ) and authorize and empower him to fulfill the initial Shareholder Representative. The role of Shareholder Representative may resign at any time, and hereunder for a period of seven (7) years after the Closing Date. If a Shareholder Representative may should resign, die or become incapacitated, its or his successor shall be removed at appointed within 30 days of his resignation, death or incapacity by a majority of the Shareholders, and such successor either shall be a Shareholder or shall otherwise be acceptable to the Buyer. The choice of a successor Shareholder Representative appointed in any time manner permitted above shall be final and binding upon all of the Shareholders. The decisions and actions of any successor Shareholder Representative shall be, for all purposes, those of a Shareholder Representative as if originally named herein.
(B) Each Shareholder has made, constituted and appointed and by the vote execution of this Agreement hereby irrevocably makes, constitutes and appoints the Shareholder Representative as such person's true and lawful attorney in fact and agent, for such person and in such person's name, (1) to receive all Claim Notices and all other notices and communications directed to such Shareholder under this Agreement and to take any action (or to determine to take no action) with respect thereto as he may deem appropriate as effectively as such Shareholder could act for himself or herself, including without limitation, the settlement or compromise of any dispute or controversy, (2) to execute and deliver all instruments and documents of every kind incident to the foregoing, including, but not limited to, the certificates identified in Section 9.4 hereof, and (3) to represent each such Shareholder's interests in any arbitration or other judicial or extrajudicial proceeding arising out of or in connection with this Agreement, to all intents and purposes and with the same effect as such Shareholder could do personally, and each such Shareholder hereby ratifies and confirms as his or her own act, all that the Shareholder Representative shall do or cause to be done pursuant to the provisions hereof. Each Shareholder hereby declares that the foregoing powers are coupled with an interest and shall be irrevocable. All Claim Notices and all other notices and communications directed to Shareholders who collectively own more than 50% under this Agreement shall be given to the Shareholder Representative.
(C) The death or incapacity of any Shareholder shall not terminate the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal authority and agency of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment .
(D) The Shareholders hereby agree to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of indemnify the Shareholder Representative shall not have the effect of releasing the Shareholders from and to hold it or him harmless against any loss, liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without grossly negligent conduct or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with his duties as Shareholder Representative, including the costs and expenses incurred by such Shareholder Representative in defending against any claim, investigation, challenge, action or proceeding or claim of liability in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativeherewith.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act have irrevocably made, constituted and appointed the Shareholder Representative as their representativeagent and true and lawful attorney-in-fact, attorney for such person and in fact such person's name, (i) to execute and proxy deliver to the Buyer on behalf of all the Shareholders this Escrow Agreement, and to take all other actions on behalf of all such Shareholders which the Shareholder Representative deems appropriate in his discretion in connection with this Escrow Agreement as effectively as such person could act for himself, herself or itself, (ii) to receive all claim notices and all of the notices and communications directed to such person under this Escrow Agreement and to take any action (or to determine to take no action) with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC thereto as the initial Shareholder Representative. The Shareholder Representative may resign at deem appropriate in his discretion as effectively as such person could act for himself, herself or itself, including, without limitation, the settlement or compromise of any timedispute relating to the Escrow Agreement or the Escrow Fund, or any other dispute or controversy relating to this Escrow Agreement, and a (iii) to execute and deliver all instruments and documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such person could do personally, and each Shareholder Representative may be removed at any time by the vote of Shareholders who collectively has ratified and confirms as his, her or its own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the deathact, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of all that the Shareholder Representative shall not have do or cause to be done pursuant to the effect of releasing the Shareholders from any liability under this Agreement.
(b) The provisions hereof. Each Shareholder Representative shall have such powers and authority as are necessary has further agreed to carry out the functions assigned to indemnify the Shareholder Representative under this Agreement; provided, however, that and to hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shallliability, at the cost or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of suffered or incurred without negligent conduct or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with his duties as Shareholder Representative, including the costs and expenses incurred by such Shareholder Representative in defending against any claim, investigation, challenge, action or proceeding or claim of liability in connection with herewith. The Shareholder Representative is specifically authorized to reimburse himself for any appeal thereofand all such loss, relating to liability, cost or expense suffered or incurred without negligent conduct or bad faith on the acts or omissions part of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event out of any action or proceeding which finally adjudicates the liability portion of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative Escrow Fund that becomes actually and finally payable and distributable to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with the provisions of Section 6(a), 6(b) or 6(c) before such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement funds are disbursed or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever distributed to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Acquisition Agreement (Quanex Corp)
Shareholder Representative. (aA) By virtue of the approving this Agreement and accepting Merger Consideration, the Participating Shareholders appoint Eric Garfield as "SHAREHOLDER REPRESENTATIVE". The Shareholder Represexxxxxxx xxxx be agent and attorney-in-fact for and on behalf of each of the Participating Shareholders agree and shall have full power and authority to appoint one Person to act as represent all of the Participating Shareholders and their representative, attorney in fact and proxy successors with respect to certain all matters specified arising under this Agreement. All actions taken by the Shareholder Representative hereunder shall be binding upon all Participating Shareholders and their successors as if expressly confirmed and ratified in this Agreement (writing by each of them, including, but not limited to, resolving all claims relating the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder RepresentativeEscrow and any indemnification claims and obligations. The Shareholder Representative may resign at shall take any timeand all actions which he believes are necessary or appropriate under this Agreement for and on behalf of the Participating Shareholders, as fully as if he were acting on his own behalf, including, without limitation, consenting to, compromising or settling issues with respect to the Escrow and all such indemnity claims with Parent under this Agreement, taking any and all other actions specified in or contemplated by this Agreement, and a engaging counsel, or accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, the Shareholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof on behalf of all Participating Shareholders and such successors. The person designated to serve as the Shareholder Representative may be removed at any time changed by the vote of Participating Shareholders who collectively own more than 50% are entitled to receive a majority of the Registrable Securities at such Escrow when and if it becomes payable hereunder from time (the "Majority Holders")to time upon not less than ten days prior written notice to Parent. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive no compensation for services but shall be entitled to be reimbursed by the effect Participating Shareholders for reasonable expenses incurred in the performance of releasing his duties hereunder, including expenses of legal counsel. All such expenses shall be payable from the Shareholders from any liability under this AgreementEscrow, if sufficient.
(bB) The Shareholder Representative shall have not be liable to the Participating Shareholders for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such powers and authority as are necessary to carry out the functions assigned to good faith. The Participating Shareholders shall severally indemnify the Shareholder Representative under this Agreement; providedand hold his harmless from and against any loss, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance and administration of his duties hereunder.
(C) The Shareholder Representative shall treat confidentially and not disclose any claimnonpublic information from or about Parent or the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(D) A decision, investigationact, challenge, action consent or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in constitute a decision of all the event of Participating Shareholders and shall be final, binding and conclusive upon each such Shareholder, and Parent may rely upon any action decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder as being the decision, act, consent or instruction of each and every such Shareholder. The Custodian under the Escrow Agreement, Parent and the Company are hereby relieved from any liability to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree 15.16.1 Each Selling Shareholder hereby irrevocably authorizes and appoints Xxxxx Xxxxxx as the Shareholder Representative, with full power of substitution and resubstitution, as his or its representative in connection with the Transactions.
15.16.2 Each Selling Shareholder agrees that the Shareholder Representative shall have the full power, authority and right to appoint one Person perform, do and take any and all actions he deems necessary or advisable to act as their representative, attorney in fact and proxy with respect to certain matters specified in carry out the purposes of this Agreement (and the "Transactions all without liability to such Selling Shareholder, so long as same are carried out by the Shareholder Representative")Representative in good faith. The parties Such actions include the power to amend, modify or waive any agreement in the name of each Selling Shareholder as if such Selling Shareholder had himself amended, modified or waived such agreement; provided that the Shareholder Representative shall have designated Goeletno power to alter any term of this Agreement which would reduce the amount or change the type of Merger Consideration to be received by any Selling Shareholder unless a majority of the Selling Shareholders shall so agree. In particular, LLC but not by way of limitation, the Shareholder Representative shall have the power to make and carry out decisions under this Agreement or in furtherance of the Transactions on behalf of each Selling Shareholder and to sign documents and make filings on behalf of each Selling Shareholder as the initial if such Selling Shareholder Representative. had himself or itself signed or filed such document.
15.16.3 Each Selling Shareholder understands and agrees that this appointment is irrevocable.
15.16.4 The Shareholder Representative may resign at any time. Upon such resignation, and a each Selling Shareholder hereby authorizes the Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the to replace such resigning Shareholder Representative shall not have with the effect of releasing the Shareholders from any liability under this Agreement.
(b) The same powers and duties as such resigning Shareholder Representative, provided that such newly appointed Shareholder Representative shall have such powers and authority as are necessary been a Selling Shareholder immediately prior to carry out the functions assigned to First Merger Effective Time.
15.16.5 If the Shareholder Representative under this Agreement; providedor any successor shall die, however, that the Shareholder Representative will have no obligation or become unable to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, a replacement shall promptly be appointed by a writing signed by Selling Shareholders who received a majority of any nature whatsoeverthe Merger Consideration, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating provided that such newly appointed Shareholder Representative shall have been a Selling Shareholder immediately prior to the acts or omissions of the Shareholder Representative hereunderFirst Merger Effective Time. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.[Signature page follows]
Appears in 1 contract
Samples: Merger Agreement (Halifax Corp)
Shareholder Representative. (a) The Shareholders agree Effective as of the date hereof, and without further act of any Selling Shareholder, Xxxxxxx Xxxxxxxx is hereby appointed as agent and attorney-in-fact (or its successor appointed pursuant to appoint one Person to act as their representativethis Section 7.7, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet) for each Selling Shareholder, LLC as for and on behalf of such Selling Shareholder: (i) to give and receive notices and communications; notices or communications to or from the initial Shareholder Representative. The Shareholder Representative may resign at any timeshall constitute notice to or from each of the Selling Shareholders; (ii) to seek indemnification from the Purchaser pursuant to the provisions of this Agreement, to defend indemnification claims by Purchaser, to agree to, negotiate, enter into settlements and compromises of, and a Shareholder Representative may be removed at demand arbitration and comply with orders of courts and awards of arbitrators with respect to indemnification or any time by other claims relating to this Agreement; and (iii) to take all actions necessary or appropriate in the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal judgment of the Shareholder RepresentativeRepresentative for the accomplishment of the foregoing.
(b) A decision, a new Shareholder Representative shall be appointed by a vote of Majority Holdersact, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation consent or removal instruction of the Shareholder Representative shall not have constitute a decision of all the effect Selling Shareholders and shall be final, binding and conclusive upon each of releasing such Selling Shareholders only with regard to the Shareholders Shareholder Representative's performance of his powers granted under 7.7(a), and the Purchaser and the Company may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of every such Selling Shareholder. Each of Purchaser and the Company is hereby relieved from any liability under this Agreement.
(b) The Shareholder Representative shall have to any person for any acts done by it in accordance with such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provideddecision, howeveract, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part consent or instruction of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall may be removed by the Selling Shareholders representing a majority in interest of the Selling Shareholders (based on the proportions set forth in Exhibit A) (the "Required Sellers") upon not be entitled less than ten (10) calendar days' prior written notice to any feethe other parties hereto, commission or other compensation for the performance of its services hereunder, but which notice shall be entitled to accompanied with an instrument executed by a substitute agent, which must be a Selling Shareholder, accepting the reimbursement by the Shareholders position of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the a Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence a dissolution of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment or any other vacancy in its position, the Required Sellers may appoint a substitute agent upon not less than ten (10) calendar days' prior written notice to the other parties hereto, which notice shall be accompanied with an instrument executed by a substitute agent, which must be a Selling Shareholder, accepting the position of his or her ratable share a Shareholder Representative. After the end of such prior notice period, the successor Shareholder Representative shall, without further acts, be vested with all the rights, powers, and duties of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the predecessor Shareholder Representative as if originally named as Shareholder Representative.
. If the position of Shareholder Representative shall be vacant for more than thirty (d30) All of the indemnitiescalendar days, immunities and powers granted Purchaser may file a petition to the Shareholder Representative under this Agreement shall survive the termination court of this Agreementcompetent jurisdiction set forth in Section 9.7 to appoint a successor to such position.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act Each Shareholder hereby irrevocably appoints and designates Xxxxxxx Xxxx as their representative, attorney in his or her representative and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"REPRESENTATIVE). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Shareholders hereby authorize the Representative shall have such powers and authority as are (i) to take all action necessary to carry out in connection with the functions assigned waiver of any condition to the obligations of any Shareholder Representative to consummate the transactions contemplated hereby; (ii) to give and receive all notices required or permitted under this Agreement; provided, however, that the Shareholder Representative will have no obligation and (iii) to act take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from Shareholders by the Majority Holders. The Shareholder Representative shall, at the expense terms of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Personsthis Agreement.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunderthat the Representative dies, upon written notice becomes unable to perform his responsibilities hereunder or resigns from Shareholder Representative to such position, the Shareholders as will select another representative to the existence of a deficiency toward the payment of any such indemnification amount, fill each such holder shall promptly deliver to vacancy and such substituted representative will be irrevocably appointed and designated the Shareholder Representative full payment for all purposes of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativethis Agreement.
(d) All decisions and actions by the Representative, including, without limitation, any agreement between the Representative and the Company relating to the waiver of any condition to the obligations of any Shareholder to consummate the transaction contemplated hereby, will be binding upon all of the indemnitiesShareholders, immunities and powers granted no Shareholder will have the right to object, dissent, protest or otherwise contest the Shareholder Representative under this Agreement shall survive the termination of this Agreementsame.
(e) Notwithstanding anything herein to the contraryBy their execution of this Agreement, each Shareholder hereby acknowledges that of the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) Shareholders agree that: The Company shall have the right will be able to rely conclusively upon all instructions, requests, consents, elections on the instructions and other decisions of the Representative as to any actions taken or omitted required to be taken by the Shareholder Representative pursuant to this Agreement hereunder, and no party hereunder will have any instrumentcause of action against the Company for any action taken by the Company in reliance upon the instructions or decisions of the Representative; all actions, agreement or document relating hereto, all decisions and instructions of which actions or omissions shall the Representative will be legally conclusive and binding upon all of the Shareholders, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative; the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement; and the provisions of this Section 1.7 will be binding upon the executors, heirs, legal representatives and successors of each Shareholder, and any references in this Agreement to a Shareholder will mean and include the successors to the rights of the Shareholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Nicollet Process Engineering Inc)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representativeUpon approval by the stockholders of CTI of the Merger, attorney in fact and proxy with respect to certain matters specified in this Agreement and the other transactions contemplated hereby, the stockholders of CTI will be deemed to have appointed, as of the Effective Time, Edwaxx X. Xxxxx (the xxe "Shareholder Representative") as their representative under this Agreement and the Escrow Agreement, including for purposes of the indemnification obligations set forth in this Article VIII, and as attorney-in-fact and agent for and on behalf of such CTI stockholders with authority to take any and all actions and make any and all decisions required or permitted to be taken or made by them under this Agreement and the Escrow Agreement (including the settling of claims for indemnity). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timeshall have full power and authority as agent of the CTI stockholders to represent the CTI stockholders, and a Shareholder Representative may be removed at their successors, heirs, representatives, and assigns with respect to all matters arising under this Agreement and the Escrow Agreement and any time other matters concerning the transactions contemplated by this Agreement and the Escrow Agreement after the Closing, and all action taken by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective binding upon the written acceptance thereof CTI stockholders and their successors, heirs, representatives and assigns as if expressly confirmed and ratified by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal each of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreementthem.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided in good faith in undertaking his duties set forth herein. The Shareholder Representative will at all times be entitled Representative, acting in such capacity, shall not incur any liability with respect to rely on any directions received from the Majority Holdersaction or inaction taken by him except those involving his own willful misconduct or gross negligence. The Shareholder Representative shallmay, at the expense of the Shareholdersin all questions arising under this Agreement, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith rely on the part advice of counsel and for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice, the Shareholder Representative shall not be liable to anyone, except to the extent such action or inaction involves 51 52 the Shareholder Representative's own willful misconduct or gross negligence. Nothing set forth in this Section 8.7(b) shall be entitled to conclusively rely on in any way relieve the opinions and advice Shareholder Representative in his capacity as a CTI Stockholder of such Personshis obligations under this Article VIII.
(c) The Shareholder Representative shall not be entitled to any fee, commission In the event of the death or other compensation for the performance permanent disability of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against his resignation as the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the a successor Shareholder Representative hereundershall be appointed by Rogex Xxxxxx. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written Xxompt notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions appointment shall be legally binding upon all delivered in writing by Rogex Xxxxxx xx WAXS and the ShareholdersEscrow Agent.
Appears in 1 contract
Shareholder Representative. (a) The Each of the Shareholders hereby appoints Borix Xxxxxxxxx, xxs agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders, to give and receive notices and communications, to authorize payment to Parent of shares of Parent Common Stock and/or cash from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent and the "Shareholder Representative"). The parties have designated GoeletEscrow Agent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any time, not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative. After all claims for Losses by Parent set forth in Officer's Certificates delivered to the Escrow Agent and the Shareholder Representative has been satisfied, investigationor reserved against, challengethe Shareholder Representative, action or proceeding or with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with any appeal thereofthe Shareholder Representative's representation hereby.
(c) A decision, relating to the acts act, consent or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification pursuant to this Agreement shall not apply in constitute a decision of the event of Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any action such decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder for his as being the decision, act, consent or her gross negligence or willful misconductinstruction of the Shareholders. In addition, the event Shareholder Representative, with the written concurrence of any indemnification hereunderMessrs. Hill and Dancu, upon written notice from Shareholder Representative may agree to the Shareholders as amendment, extension or waiver of this Agreement pursuant to the existence of a deficiency toward the payment of Sections 8.1 and 8.2 hereof. The Escrow Agent and Parent are hereby relieved from any such indemnification amount, each such holder shall promptly deliver liability to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, any person for any acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of Subject to Parent's prior claims for indemnification against the indemnitiesEscrow Fund, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein be entitled to the contraryreceive payment for its reasonable and documented expenses therefrom, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever prior to any such Shareholder or payments to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Realnetworks Inc)
Shareholder Representative. (a) The Shareholders agree By adoption of this Agreement, execution or submission of a Form of Election or the acceptance of any portion of the Merger Consideration, each Company Holder hereby designates the Shareholder Representative to appoint one Person execute any and all instruments or other documents on behalf of such Company Holder, and to do any and all other acts or things on behalf of such Company Holder, which the Shareholder Representative may deem necessary or advisable, or which may be required pursuant to this Agreement, the Ancillary Agreements or otherwise, in connection with the consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) execute the Ancillary Agreements on behalf of each Company Holder; (ii) act as their representative, attorney in fact and proxy for each Company Holder with respect to certain any the Ancillary Agreements; (iii) give and receive notices and communications to or from the Parent relating to this Agreement, the Ancillary Agreements or any of the transactions and other matters specified in contemplated hereby or thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be given or received by such Company Holders individually); (iv) to enforce and protect the "rights and interests of the Company Holders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, from and after the Closing; (v) directing the method of payment for any deferred payments owed to the Company Holders pursuant to Tax Receivables Agreement and coordinating with Parent with respect thereto; (vi) execute a Section 431 Election, to the extent applicable; and (vii) take all actions necessary or appropriate in the judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing. The parties Shareholder Representative shall have designated Goeletauthority and power to act on behalf of each Company Holder with respect to the disposition, LLC as settlement or other handling of all claims under this Agreement or the initial Ancillary Agreements and all rights or obligations arising hereunder or thereunder. The Company Holders shall be bound by all actions taken and documents executed by the Shareholders Representative in connection with this Agreement and the Ancillary Agreements, and the Parent and Surviving NewCo and any of their affiliates shall be entitled to rely on any action or decision of the Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by shall receive no compensation for its services. Notices or communications to or from the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holdersconstitute notice to or from each Company Holder.
(b) In performing the functions specified in this Agreement, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from be liable to any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (Company Holder in the absence of bad faith gross negligence or willful misconduct on the part of the Shareholder Representative) . Each Company Holder shall be entitled to conclusively rely severally (based on the opinions each such Company Holder’s Pro Rata Share), and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any feejointly, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees indemnify and expenses incurred as hold harmless the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, from and against any instrument, agreement loss incurred without gross negligence or document relating hereto or thereto, and in exercising or failing to exercise all or any willful misconduct on the part of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of its duties hereunder. The Shareholder Representative may draw at any claimtime, investigationand from time to time, challengefrom the Administrative Expense Account to pay any amounts due by the Company Holders hereunder, action including, any losses, third-party fees, expenses or proceeding costs it incurs in performing its duties and obligations under this Agreement by or in connection with on behalf of the Company Holders, including, without limitation, legal and consultant fees, expenses and costs for reviewing, analyzing and defending any appeal thereofclaim or process arising under or pursuant to this Agreement or any Ancillary Agreement (collectively, relating to “Administrative Costs”). From and after the acts or omissions of Closing, if the Shareholder Representative hereunder. The foregoing indemnification shall not apply determines that the amounts in the event Administrative Expense Account are
(c) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
Holder and (dii) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination consummation of this Agreement.
(e) Notwithstanding anything herein to the contraryMergers, each Shareholder hereby acknowledges that the Company shall not have and any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be action taken by the Shareholder Representative pursuant to the authority granted in this Agreement shall be effective and binding on each Company Holder notwithstanding any instrumentcontrary action of or direction from such Company Holder, agreement or document relating hereto, all of which except for actions or omissions shall be legally binding upon all the Shareholdersof Shareholder Representative constituting willful misconduct.
Appears in 1 contract
Samples: Transaction Agreement (Avista Healthcare Public Acquisition Corp.)
Shareholder Representative. (a) The Major Shareholders agree hereby irrevocably constitute and appoint ATS AS in the capacity as the Shareholder Representative under this Agreement and the Ancillary Documents to appoint one Person which the Shareholder Representative is a party or otherwise has rights in such capacity (the “Shareholder Representative Documents”), as the true and lawful agent and attorney-in-fact of such Major Shareholder with full powers of substitution to act as their representativein the name, attorney in fact place and proxy stead thereof with respect to certain matters specified in this Agreement (the "performance on behalf of such Major Shareholder Representative"). The parties have designated Goelet, LLC as under the initial Shareholder Representative. The Shareholder Representative may resign at any time, terms and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% provisions of the Registrable Securities at such time (under the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal terms and provisions of the Shareholder Representative shall not have Documents, as the effect same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of releasing such Major Shareholder, if any, as the Shareholders from Shareholder Representative will deem necessary or appropriate in connection with any liability under this Agreementof the transactions contemplated by the Shareholder Representative Documents.
(b) The Any other Person, including the Purchaser Representative, Pubco, Merger Subs, Purchaser and the Company may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the Major Shareholders under the Shareholder Representative Documents. The Purchaser Representative, Pubco, Merger Subs, Purchaser and the Company shall be entitled to rely conclusively on the instructions and decisions of the Shareholder Representative as to (i) any payment instructions provided by the Shareholder Representative or (ii) any other actions required or permitted to be taken by the Shareholder Representative hereunder, and, in accordance with the Major Shareholder Irrevocable Undertakings, no Major Shareholder will have such powers and authority as are necessary any cause of action against the Purchaser Representative, Pubco, Merger Subs, Purchaser, or the Company for any action taken by any of them in reliance upon the instructions or decisions of the Shareholder Representative. All notices or other communications required to carry out the functions assigned be made or delivered to a Major Shareholder under any Shareholder Representative Document shall be made to the Shareholder Representative under this Agreement; providedfor the benefit of such Major Shareholder, however, that and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to such Major Shareholder with respect thereto. All notices or other communications required to be made or delivered by a Major Shareholder shall be made by the Shareholder Representative will have no obligation to act on behalf (except for a notice under Section 15.14(c) of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part replacement of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons).
(c) If the Shareholder Representative shall die, become disabled, resign or otherwise be unable or unwilling to fulfill his, her or its responsibilities as representative and agent of the Major Shareholders, then in accordance with the Major Shareholder Irrevocable Undertaking, the Major Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Shareholder Representative (by vote or written consent of the Major Shareholders holding in the aggregate in excess of fifty percent (50%) of the Exchange Shares held by all Major Shareholders), and promptly thereafter notify the Purchaser Representative, Purchaser and Pubco in writing of the identity of such successor. Any such successor so appointed shall become the “Shareholder Representative” for purposes of this Agreement and the other Shareholder Representative Documents.
(d) The Shareholder Representative shall not be entitled to liable for any fee, commission act done or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her omitted under this Agreement or its fees and expenses incurred any Ancillary Document as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreementwhile acting in good faith and without willful misconduct or gross negligence, and any instrument, agreement act done or document relating hereto or thereto, and in exercising or failing omitted pursuant to exercise all or any the advice of counsel shall be conclusive evidence of such good faith. Each of the powers conferred upon Major Shareholders shall jointly and severally indemnify, defend and hold harmless the Shareholder Representative hereunderfrom and against any and all losses, Actions, Orders, Liabilities, damages, amounts paid in settlement, costs and expenses (including reasonable expenses of investigation and court costs and reasonable attorney’s fees and expenses) incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs its capacity as such) and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions administration of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in Representative’s duties under this Agreement or any Ancillary Document, including the event reasonable fees and expenses of any action or proceeding which finally adjudicates the liability of legal counsel retained by the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interestRepresentative. In no event shall the Company Shareholder Representative in such capacity be responsible liable hereunder or in connection herewith for any reimbursement indirect, punitive, special or indemnification consequential damages. The Shareholder Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Shareholder Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Shareholder Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Major Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Shareholder Representative.
(d) Representative may deem necessary or appropriate from time to time. All of the indemnities, immunities immunities, releases and powers granted to the Shareholder Representative under this Agreement Section 15.14(d) shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever Closings and continue indefinitely. With respect to any such Shareholder claim or cause of action arising out of, or related to any other party with respect to act or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken omission by the Shareholder Representative pursuant based upon, arising out of, or related to this Agreement, this Agreement may only be enforced against the Shareholder Representative, and not any instrumentof the officers, agreement directors, securityholders, employees or document relating heretoAffiliates of the Shareholder Representative (the “Shareholder Representative Related Parties”). No Shareholder Representative Related Party shall have any liability for any obligations or liabilities of the Shareholder Representative, all including but not limited to, for any claim based on, in respect of, or by reason of, any failure by the Shareholder Representative of which actions the transactions contemplated by this Agreement to be consummated or omissions shall be legally binding upon all any breach or failure of the ShareholdersShareholder Representative to perform hereunder.
Appears in 1 contract
Samples: Business Combination Agreement (Alussa Energy Acquisition Corp.)
Shareholder Representative. (a) The Shareholders agree parties have agreed that, effective as of the date of this Agreement, it is desirable to appoint one Person designate the Shareholder Representative as a representative to act on behalf of the Company Equityholders for certain limited purposes, as their representative, attorney in fact and proxy with respect to certain matters specified in herein. The approval of this Agreement (by the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder RepresentativeCompany Equityholders shall constitute ratification and approval of such designation. The Shareholder Representative may resign at any time, and a the Shareholder Representative may be removed at any time by the vote of Shareholders who the holders of Company Ordinary Shares which collectively own more than 50% of the Registrable Securities hold at such time (or, following the "Closing, held immediately prior to the Effective Time) more than fifty percent (50%) of the outstanding Company Ordinary Shares (the “Majority Holders"Equityholders”). In the event of the death, resignation or removal of that the Shareholder RepresentativeRepresentative has resigned or been removed, a new Shareholder Representative shall be appointed by a vote of the Majority HoldersEquityholders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative it under this Agreement; provided, however, that the Shareholder Representative will shall have no obligation to act on behalf of the ShareholdersCompany Equityholders and CVR Holders, except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholder Representative shall have full power, authority and discretion to (i) expend Shareholder Allocable Expenses, (ii) negotiate and enter into amendments to this Agreement and the Escrow Agreement for and on behalf of the Company Equityholders and CVR Holders, and (iii) exercise on behalf of the Company Equityholders and CVR Holders all rights granted to the Shareholder Representative under Section 3.7, and (iv) act as a representative of Parent Indemnifying Parties under Section 9.5. The Shareholder Representative will shall have no Liability to Parent, Merger Sub, the Company (or, following the Effective Time, the Surviving Company) or any Company Equityholder or CVR Holder with respect to actions taken or omitted to be taken in its capacity as the Shareholder Representative (except to Company Equityholders and CVR Holders for those actions arising out of the Shareholder Representative’s bad faith or willful misconduct). The Shareholder Representative shall at all times be entitled to rely on any directions received from the Majority HoldersEquityholders; provided, however, that the Shareholder Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as the Shareholder Representative, unless the Shareholder Representative is holding funds delivered to it under Section 3.12 and/or has been provided with other funds, security or indemnities which, in the sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative against the costs, expenses and Liabilities which may be incurred by the Shareholder Representative in responding to such direction or taking such action. The Shareholder Representative shall, at the expense of the Shareholders, shall be entitled to engage such counsel, advisors, experts and other agents and consultants as they it shall deem necessary in connection with exercising their its powers and performing their its function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) . The Shareholder Representative shall not be entitled to any feereimbursement from funds paid to it under Section 3.12, commission or other compensation released from the Adjustment Escrow Account for the performance benefit of the Company Equityholders (other than Pathfinder) and CVR Holders and/or otherwise received by it in its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred capacity as the Shareholder Representative pursuant to Section 4.2 hereof. In or in connection with this Agreement, for all reasonable expenses, disbursements and any instrumentadvances (including fees and disbursements of its counsel, agreement or document relating hereto or theretoadvisors, experts and in exercising or failing to exercise all or any of the powers conferred upon other agents and consultants) incurred by the Shareholder Representative hereunderin such capacity, and shall be entitled to indemnification (A) first, from funds paid to it under Section 3.12, and (B) second, from the Shareholder Representative shall incur no responsibility whatsoever to Company Equityholders (other than Pathfinder) and CVR Holders against any Shareholder by reason of any error in judgment loss, Liability 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, expenses arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken in its capacity as the Shareholder Representative (except for those arising out of the Shareholder Representative’s bad faith or willful misconduct), including the costs and expenses of investigation and defense of claims. In the event that the Shareholder Allocable Expenses exceed the amount actually incurred by the Shareholder Representative pursuant in its capacity as such, upon the final release of funds from the Adjustment Escrow Account and shares from the Indemnity Escrow Account in accordance with the terms of the Escrow Agreement, the Shareholder Representative shall deliver (1) to this Agreement the Paying Agent (for payment to each holder of Company Ordinary Shares) a cash payment in an amount equal to the product of (x) such excess amount, multiplied by (y) the Ordinary Shares Percentage, (2) to the Surviving Company (for payment to each Optionholder) a cash payment in an amount equal to the product of (x) such excess amount, multiplied by (y) the Option Percentage and any instrument, agreement or document relating hereto, all (3) to ECI BV a cash payment in an amount equal to the product of which actions or omissions shall be legally binding upon all (x) such excess amount multiplied by (y) the ShareholdersCVR Percentage.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree parties have agreed that it is desirable to appoint one Person designate X.X. Xxxxxxxxx to act serve as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement the representative of the shareholders of Vianeta (the "Shareholder Representative")) for certain limited purposes as set forth herein. The parties have designated Goelet, LLC as approval of this Agreement by the initial Shareholder Representativeshareholders of Vianeta will constitute ratification and approval of such designation. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall will have such powers power and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, howeverincluding the power and authority:
(i) to enforce, defend and protect the rights and interests of the shareholders of Vianeta following the Closing under Article IX of this Agreement, and to take any and all actions that the Shareholder Representative will have no obligation to act believes are necessary or appropriate under Article IX of this Agreement for and on behalf of the Shareholdersshareholders of Vianeta, except as expressly provided herein. including, without limitation, asserting, pursuing or defending any claim by or against Parent or the Surviving Corporation, consenting to, compromising or settling any such claim, and conducting negotiations with Parent or Surviving Corporation; and
(ii) to make, execute, acknowledge and deliver all such other agreements, notices, requests, instructions and other writings, and, in general, to do any and all things and to take any and all actions that the Shareholder Representative may consider necessary or proper in connection with carrying out the responsibilities of the Shareholder Representative under Article IX of this Agreement.
(b) The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In deems necessary or proper in connection with this Agreementperforming its obligations hereunder, and any instrumentwill be promptly reimbursed by the shareholders of Vianeta for all reasonable expenses, agreement or document relating hereto or thereto, disbursements and in exercising or failing to exercise all or any of the powers conferred upon advances incurred by the Shareholder Representative hereunderin such capacity upon demand, pro rata based upon each such shareholder's share of Vianeta capital stock as of the Closing. Each shareholder of Vianeta shall indemnify and hold harmless the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnifyRepresentative, pro rata based upon such holdershareholder's percentage interestshare of all Vianeta capital stock as of the Closing, from any and all Damages that are incurred by the Shareholder Representative against all lossesas a result of actions taken, damagesor actions not taken, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of by the Shareholder Representative hereunder. The foregoing indemnification shall not apply in herein, except to the event of any action or proceeding which finally adjudicates extent that such Damages arise from the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification misconduct of the Shareholder Representative.
(dc) All amounts received by the Shareholder Representative on behalf of the indemnitiesshareholders of Vianeta will be promptly paid by the Shareholder Representative to the shareholders of Vianeta, immunities and powers granted pro rata based upon such shareholder's share of Vianeta capital stock as of the Closing; provided, however, that the Shareholder Representative will be entitled to set off any amounts payable to the Shareholder Representative under Section 10.13(b) against amounts otherwise payable to shareholders of Vianeta pursuant to this Agreement shall survive the termination of this AgreementSection 10.13(c).
(ed) Notwithstanding anything herein to the contraryHoldings, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company Parent and Surviving Corporation shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be not taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating heretoAgreement, all of which actions or omissions shall be legally binding upon all the Shareholdersshareholders of Vianeta.
(e) If at any time the Shareholder Representative resigns, dies or becomes incapable of acting, the shareholders of a majority of Vianeta common stock and a majority of Vianeta preferred stock as of the Closing shall choose another holder to act as the Shareholder Representative under this Agreement.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to In the event that the Merger is approved, effective upon such vote, and without further act of any Shareholder, Xxxxxxx X. Xxxx shall be appointed as their representative, attorney in agent and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative")) for each Shareholder, for and on behalf of the Shareholders, to give and receive notices and communications, to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any time, not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote of Shareholders who collectively own more than 50% approval of the Registrable Securities at such time (holders of a majority in interest in the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for his or her services. Notices or communications to or from the effect Shareholder Representative shall constitute notice to or from each of releasing the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting without gross negligence, bad faith and authority as are necessary willful misconduct. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall severally indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shallliability or expense incurred without gross negligence, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith or willful misconduct on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant shall constitute a decision of all Shareholders for whom a portion of the Escrow Amount otherwise issuable to this Agreement them are deposited in the Escrow Fund and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all each of such Shareholders, and the Shareholders.Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and every such Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to 49
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Infoseek Corp /De/)
Shareholder Representative. (a) The Concurrently with approving this Agreement and the Merger, the Shareholders agree to shall appoint one Person to act Xxxx Xxxxxxx-Xxxxx as their representativeagent and attorney-in- fact, attorney in fact as the shareholder representative for and proxy with respect to certain matters specified in this Agreement on behalf of the Shareholders (the "Shareholder Representative"), to give and receive notices and -------------------------- communications, to object to such retention, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than ten (10) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder RepresentativeRepresentative may not be removed unless holders of a majority interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. The Shareholder Representative may resign at any time, time upon written notice to Parent and a the Shareholders. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a simple majority interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount is contributed to the Escrow Fund shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative.
(c) A decision, investigationact, challengeconsent or instruction of the Shareholder Representative, action including but not limited to an amendment, extension or proceeding waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent may rely upon any such decision, act, consent or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. The foregoing indemnification shall not apply in the event of Parent is hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of Subject to Parent's prior claims for indemnification against the indemnitiesEscrow Fund, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein be entitled to the contraryreceive payment for its reasonable and documented expenses therefrom, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever prior to any such Shareholder or payments to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lynuxworks Inc)
Shareholder Representative. (a) The Shareholders agree Each Target Shareholder, by the execution and delivery of this Agreement, hereby consents and agrees to appoint one Person to act the appointment of Xxxxxxx X. Xxxxx as their representative, attorney in fact and proxy with respect to certain the “Shareholder Representative” for purposes of all matters specified expressly set forth in this Agreement (to be performed by the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at As to any timematter not expressly provided for by this Agreement, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have be required to exercise any discretion or to take any action that exposes the effect Shareholder Representative to personal liability or that is contrary to this Agreement or applicable law. The Shareholder Representative shall be deemed to continue in office notwithstanding any purported resignation or removal until Acquiror receives written notice signed by the Target Shareholders that held a majority of releasing the Target Common Stock immediately prior to the Effective Time designating a new Shareholder Representative that is reasonably acceptable to Acquiror. Each Target Shareholder hereby constitutes and appoints the Shareholder Representative, including any replacement of any such Shareholder Representative, as attorney-in-fact for such Target Shareholder with full power of substitution and authority, in his discretion, to enforce this Agreement against the parties hereto, and to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and receive notices and communications and, without limiting the foregoing provisions of this Section 7.10, dispute any decision of Acquiror to pay itself or any Indemnitee hereunder, to agree to, negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any dispute or loss, and to take all actions necessary or appropriate in the reasonable judgment of the Shareholder Representative for the accomplishment of the foregoing. The Shareholder Representative shall be entitled to consent to any payment from the Hold Back Amount or Aggregate Earn-Out Consideration to Acquiror. The Target Shareholders from any liability shall be responsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative in performing his duties under this Agreement. The Shareholder Representative shall not use or disclose any non-public information.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to All decisions of the Shareholder Representative under this Agreement; providedmay be relied upon by Acquiror and any third person, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions binding and advice of such Personsconclusive upon each Target Shareholder.
(c) The Shareholder Representative shall not be entitled to any feeliable, commission responsible or other compensation for the performance of its services hereunder, but shall be entitled accountable in damages or otherwise to the reimbursement by the Target Shareholders of all his, her for any loss or its fees and expenses damage incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each by such Shareholder Representative, and each Target Shareholder shall indemnify, pro rata based upon such holder's percentage interest, indemnify and hold harmless the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' any loss or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating damage except to the acts extent that such loss or omissions damage shall have been the result of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her individual gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount misconduct of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All The Shareholder Representative hereby agrees that all information now or hereafter received from Acquiror will be used solely for the purpose of performing the indemnities, immunities and powers granted to functions of the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contraryhereunder, each Shareholder hereby acknowledges and that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction information, except as required by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructionslaw, requests, consents, elections and other actions taken or omitted to will be taken kept confidential by the Shareholder Representative pursuant and the Shareholder Representative’s legal counsel and accountants who need to this Agreement and any instrument, agreement or document relating hereto, all know such information for the purpose of which actions or omissions shall be legally binding upon all assisting in the Shareholdersperformance of the Shareholder Representative’s functions hereunder.
Appears in 1 contract
Shareholder Representative. To facilitate the consummation of the transactions contemplated by this Agreement, from and after the Closing, each of the Selling Shareholders (aand their successors and assigns) The Shareholders hereby irrevocably consent to the appointment of, and do hereby appoint and empower, each of Xxxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxxx, Xx. (and each of them does hereby accept such appointment) as each such Selling Shareholder's attorney-in-fact (with full power of substitution) for carrying out the transactions contemplated hereby and as the sole and exclusive representative (each, a "SHAREHOLDER REPRESENTATIVE") of all of them (and their successors and assigns) to make all decisions and determinations on behalf of all of them (and their successors and assigns) that the Shareholder Representatives may deem necessary or appropriate to accomplish the intent, and implement the provisions, of this Agreement, including, without limitations, the execution of the Subscription Agreement or the Option Agreement, as the case may be. Without limiting the generality of the foregoing, the Shareholder Representatives shall have the power to agree to appoint one Person to act as their representative, attorney in fact and proxy any matters with respect to certain matters specified in this Agreement indemnification provided for hereunder. All decisions of the Shareholder Representatives shall be final and binding on all of the Selling Shareholders (the "Shareholder Representative"and their successors and assigns). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, Purchaser (and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers its successors and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representativeassigns) shall be entitled to conclusively rely on upon, without independent investigation, any decision or action of a Shareholder Representative and shall be fully protected in connection with any action or inaction taken or omitted to be taken in reliance thereon. The Selling Shareholders (and their permitted successors and assigns) may by the opinions vote of holders holding a majority of shares at any time and advice from time to time replace the Shareholder Representatives and appoint another Selling Shareholder as a Shareholder Representative. It is a condition to the appointment of any Person as the Shareholder Representative hereunder that such Persons.
(c) The Person confirms in writing to the Purchaser that such Person has accepted such appointment as the Shareholder Representative under the terms of this Article. If a Shareholder Representative is replaced as provided for herein, the newly-appointed Shareholder Representative shall not be entitled to any feenotify the Purchaser in writing of such Person's appointment and appropriate contact information, commission or other compensation for and the performance of Purchaser (and its services hereunder, but successors and assigns) shall be entitled to rely upon, without independent investigation, the reimbursement by the Shareholders identity of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereofas set forth in such written notice. In connection with The Selling Shareholders agree, by their execution of this Agreement, and that the Shareholder Representatives, in their capacity as such, shall not have any instrument, agreement or document relating hereto or thereto, and in exercising or failing liability to exercise all or any of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 Selling Shareholders for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunderRepresentatives taken, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken taken, in connection with performance of the duties of the Shareholder Representatives described herein, and each Selling Shareholder hereby waives and releases any claims against the Shareholder Representatives in such capacity and shall not initiate any lawsuits or other court proceedings, or take similar action, against the Shareholder Representatives, in any case other than for acts or omissions involving wilful misconduct by the Shareholder Representative Representatives. The Selling Shareholders agree to indemnify, defend and hold harmless the Shareholder Representatives from and against any Losses based upon, arising out of or otherwise resulting from any action undertaken pursuant to this Agreement by the Shareholder Representatives, other than any Losses arising as a result of the gross negligence and any instrument, agreement or document relating hereto, all malfeasance of which actions or omissions shall be legally binding upon all the ShareholdersShareholder Representatives.
Appears in 1 contract
Shareholder Representative. (a) The In order to efficiently administer the defense and/or settlement of any claims for indemnity by an Acquiror Indemnified Party pursuant to Article IX, Xxxx Xxxxxxxxxxx, is hereby irrevocably appointed to serve as the sole and exclusive representative of the Shareholders agree to appoint one Person (the “Shareholder Representative”) as the Shareholders’ sole, exclusive, true and lawful agent, representative and attorney-in-fact to act as their representative, attorney in fact for and proxy with respect to certain matters specified in this Agreement (on behalf of the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder RepresentativeShareholders. The Shareholder Representative shall have full and exclusive power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Acquiror Indemnified Party may resign at claim to be entitled to indemnity pursuant to Article IX, all decisions and actions relating to any timeadjustment to the Merger Consideration or any modification of, settlement with respect to or timing of the payment of the Additional Consideration pursuant to Article II, to approve any modifications to the 2010 Plan and otherwise act on behalf of the Shareholders with respect to matters relating to the conduct of the business of the Company during the Earn-Out Period pursuant to Section 2.3, and a otherwise to act on behalf of the Shareholders in all respects with respect to this Agreement, including, without limitation, the amendment or termination of such agreements. All decisions and actions by the Shareholder Representative may shall be removed at any time by the vote of Shareholders who collectively own more than 50% binding upon all of the Registrable Securities at such time (Shareholders, and no Shareholder shall have the "Majority Holders")right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation or removal of the Shareholder Representative, the Shareholders holding a new majority of the Common Stock (excluding the holders of any Dissenting Shares) immediately prior to the Effective Time (the “Majority Shareholders”) shall promptly appoint a substitute Shareholder Representative which shall be appointed by a vote of Majority Holdersreasonably acceptable to Acquiror; provided, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the deathhowever, resignation or removal of in no event shall the Shareholder Representative resign without the Majority Shareholders having first appointed a substitute Shareholder Representative who shall not have assume such duties immediately upon the effect resignation of releasing the Shareholders from any liability under this Agreementsuch Shareholder Representative.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out Neither Acquiror, Acquiror Sub nor the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Surviving Company shall have the right to rely conclusively upon all instructionsobject to, requests, consents, elections and other actions taken protest or omitted otherwise contest any matter related to be the procedures for action being taken by the Shareholder Representative as between the Shareholder Representative and the Shareholders. Acquiror, Acquiror Sub and the Surviving Company waive any claims they may have or assert, including those that may arise in the future, against the Shareholder Representative or any of his Affiliates that relate to the Shareholder Representative’s role as such, including any claims for any action or inaction taken or not taken by the Shareholder Representative in connection herewith.
(c) Each Shareholder that accepts payment of consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, as the case may be, to have agreed that (i) the provisions of this Section 10.14 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies such Shareholder may have in connection with the transactions contemplated by this Agreement, (ii) the remedy at law for any breach of the provisions of this Section 10.14 would be inadequate, (iii) such Shareholder shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if such Shareholder brings an action to enforce the provisions of this Section 10.14 and (iv) the provisions of this Section 10.14 shall be binding upon such Shareholders and the successors and assigns of such Shareholders.
(d) In addition, each Shareholder that accepts payment of consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, as the case may be, to:
(i) have waived any claims he, she or it may have or assert, including those that may arise in the future, against the Shareholder Representative and any of his Affiliates, for any action or inaction taken or not taken by the Shareholder Representative in connection therewith; and
(ii) have accepted such Shareholder’s obligations with respect to such Shareholder’s liability for amounts to be reimbursed to the Acquiror pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersArticle IX.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person Xxxxxxx agrees to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timeas, and a Shareholder Representative may be removed at any time by assume the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the deathobligations and responsibilities of, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; providedAgreement (the “Shareholder Representative”). Each Shareholder, howeveras a condition of tendering its Shares for the Per Share Merger Consideration shall, that pursuant to its Letter of Transmittal, (i) irrevocably appoint the Shareholder Representative will have no obligation as its representative, agent, proxy, and attorney-in-fact for all purposes under this Agreement, including the full power and authority on such Shareholder’s behalf: (x) to act on behalf of consummate the Shareholderstransactions contemplated by this Agreement, except as expressly provided herein. The Shareholder Representative will at all times be entitled (y) to rely on any directions received from negotiate disputes arising under, or relating to, this Agreement and the Majority Holders. The Shareholder Representative shallother agreements, at the expense of the Shareholderscertificates, be entitled to engage such counselinstruments, experts and other agents and consultants as they shall deem necessary documents contemplated by this Agreement or executed or delivered in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and (z) to execute and deliver any instrument, agreement amendment or document relating hereto or thereto, and in exercising or failing waiver to exercise all this Agreement or any of the powers conferred upon other agreements, certificates, instruments, and documents contemplated by this Agreement or executed or delivered in connection with this Agreement to be executed by such Shareholder; (ii) consent to Xxxxxxx acting as the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever and to any Shareholder by reason of any error in judgment Xxxxxxx taking all actions required 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted permitted to be taken by the Shareholder Representative pursuant to this Agreement and the other agreements, certificates, instruments, and documents contemplated by this Agreement or executed or delivered in connection with this Agreement and performing the duties of the Shareholder Representative pursuant to the terms hereof or thereof; and (iii) agree to be bound by the provisions of this Section 10.5.
(b) Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to take any instrument, agreement or document relating hereto, all of which such action and no duties other than actions or omissions and duties expressly required under this Agreement to be complied with by the Shareholder Representative.
(c) All decisions and actions by the Shareholder Representative shall be legally binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest, or otherwise contest the same. The Shareholder Representative shall have no Liability in respect of any action, claim, or proceeding brought against the Shareholder Representative by any Shareholder if the Shareholder Representative took or omitted taking any action in good faith or took or omitted to take such action at the direction of the Shareholders owning a majority of the outstanding Preferred Stock immediately prior to the Closing.
(d) The designation of the Shareholder Representative as attorney-in-fact for each Shareholder is coupled with an interest and is binding upon such Shareholder notwithstanding the death, incapacity or dissolution of any such Shareholder. If any such event shall occur prior to the completion of the transactions contemplated by this Agreement, the Shareholder Representative is, nevertheless, to the extent that it is legally able to do so, authorized and directed to complete all transactions and act pursuant to this authority as if such event had not occurred.
(e) The Shareholder Representative’s acceptance of its duties under this Agreement is subject to the following terms and conditions, which the Parties hereto agree shall govern and control with respect to its rights, duties, liabilities and immunities as the Shareholder Representative (but not in its capacity as a Shareholder):
(i) The Shareholder Representative, in its capacity as Shareholder Representative, makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under this Agreement by any Party.
(ii) The Shareholder Representative shall be protected in acting upon written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be.
(iii) The Shareholder Representative, in its capacity as Shareholder Representative, shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or willful misconduct.
(iv) The Shareholder Representative, in its capacity as the Shareholder Representative, may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel.
(f) The Shareholders shall bear pro rata (based on the Per Share Merger Consideration owed to each) for all expenses (including reasonable attorneys’ fees, transfer Taxes and other governmental charges) incurred by the Shareholder Representative in connection with its duties hereunder and all amounts paid by the Shareholder Representative pursuant to the terms of this Agreement, including without limitation, under Section 2.7, 2.8, 2.9, 2.10, and 8.6 and Article 9, and shall indemnify, defend and hold it harmless against any and all Losses incurred in connection with the performance of this Agreement, except as a result of its own gross negligence or willful misconduct; provided, however, (i) the obligation of any Shareholder other than Xxxxxxx shall be non-recourse to such Shareholder and shall be payable solely from the Per Share Merger Consideration and (ii) no Shareholder other than Xxxxxxx shall have any obligation to reimburse the Shareholder Representative for any Loss paid by the Shareholder Representative pursuant to Article 9 solely as a result of any breach by Xxxxxxx of its covenants or representations. The Shareholders agree that the Shareholder Representative shall have the right from time to time to direct the Paying Agent to pay the Shareholder Representative amounts owed to it pursuant to this Section 10.5(f) from amounts then on deposit in the Paying Agent Account.
(g) Notwithstanding anything in this Agreement to the contrary, to the extent the Shareholder Representative has any Liability to any Purchaser Party pursuant to this Agreement or any other agreement, certificate, or instrument delivered in connection with this Agreement, Xxxxxxx shall have personal Liability to such Purchaser Party for such Liability, regardless of the extent to which the Shareholder Representative is entitled or is able, either as a Shareholder or as the Shareholder Representative, to enforce its rights against any other Shareholder.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree Each Shareholder, by the execution and delivery of this Agreement, hereby consents and agrees to appoint one Person to act the appointment of Cxxxxxxxxxx X. Xxxxxx as their representative, attorney in fact and proxy with respect to certain the “Shareholder Representative” for purposes of all matters specified expressly set forth in this Agreement (to be performed by the "Shareholder Representative")Representative including without limitation representing the interests of such Shareholder in any dispute relating to this Agreement in accordance with Sections 1.12 and 7.10. As to any matter not expressly provided for by this Agreement, the Shareholder Representative shall not be required to exercise any discretion or to take any action that exposes the Shareholder Representative to personal liability or that is contrary to this Agreement or applicable law. The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by upon the vote written election of Shareholders who collectively own are owed more than fifty percent (50% %) of the Registrable Securities aggregate Hold Back Amount remaining to be distributed at any time; provided that such time (the "Majority Holders")Shareholders elect a replacement Shareholder Representative reasonably acceptable to Parent. In the event of the death, resignation or removal of Each Shareholder hereby constitutes and appoints the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote including any replacement of Majority Holders, any such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by , as attorney-in-fact for such Shareholder with full power of substitution and authority, in his discretion, to enforce this Agreement against the Majority Holders parties hereto, and to appoint a new Shareholder Representative upon execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the deathprovisions of this Agreement, resignation to give and receive notices and communications and, without limiting the foregoing provisions of this Section 7.12, dispute any decision of Parent to pay itself or removal any Indemnitee hereunder, to agree to, negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any dispute or loss, and to take all actions necessary or appropriate in the reasonable judgment of the Shareholder Representative shall not have for the effect accomplishment of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementforegoing; provided, however, that the Shareholder Representative will shall not have no obligation the power or authority to act on behalf execute an amendment, waiver, document or other instrument that, notwithstanding any other provision to the contrary, increases in any material respect the obligations or liabilities of any Shareholder without the Shareholdersprior written consent of that Shareholder. For avoidance of doubt, except as expressly provided hereinthe parties hereto agree that the foregoing sentence shall not prevent the Shareholder Representative from agreeing to any payment from the Hold Back or Earnout to Parent. The Shareholders shall be responsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative will at all times be entitled to rely on in performing his duties under this Agreement. Without limiting any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part right of the Shareholder Representative) , the Shareholder Representative shall be entitled provided reasonable access to conclusively rely on information regarding the opinions Company for purposes of performing his duties hereunder, provided that the Shareholder Representative shall treat confidentially any non-public information.
(b) All decisions of the Shareholder Representative may be relied upon by any third person, and advice of such Personsshall be binding and conclusive upon each Shareholder.
(c) The Shareholder Representative shall not be entitled to any feeliable, commission responsible or other compensation for the performance of its services hereunder, but shall be entitled accountable in damages or otherwise to the reimbursement by the Shareholders of all his, her for any loss or its fees and expenses damage incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each by such Shareholder Representative, and each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, indemnify and hold harmless the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' any loss or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating damage except to the acts extent that such loss or omissions damage shall have been the result of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her individual gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount misconduct of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Sonic Innovations Inc)
Shareholder Representative. (a) The Shareholders agree Parties have agreed that it is desirable to appoint one Person designate Xxxxx Xxxxxx (and if Xxxxx Xxxxxx is unable or unwilling to act serve, then Xxxx Xxxxxx) to serve as their representative, attorney in fact and proxy with respect to the representative of the holders of the Company Stock (the “Shareholder Representative”) for certain matters specified in limited purposes as set forth herein. The approval of this Agreement (by the "Shareholder Representative"). The parties have designated Goelet, LLC as holders of the initial Shareholder RepresentativeCompany Stock will constitute ratification and approval of such designation. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall will have such powers power and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement and the Escrow Agreement; provided, howeverincluding the power and authority:
(i) to execute and deliver the Escrow Agreement, and to enter into any amendments, modifications and/or waivers in respect thereof;
(ii) to enforce, defend and protect the rights and interests of the holders of the Company Stock following the Closing under Article IX of this Agreement and under the Escrow Agreement, and to take any and all actions that the Shareholder Representative will have no obligation to act believes are necessary or appropriate under Article IX of this Agreement and under the Escrow Agreement for and on behalf of the Shareholdersholders of the Company Stock, except as expressly provided herein. including, without limitation, asserting, pursuing or defending any claim by or against Parent or the Surviving Corporation, consenting to, compromising or settling any such claim, and conducting negotiations with Parent or Surviving Corporation; and
(iii) to make, execute, acknowledge and deliver all such other agreements, notices, requests, instructions and other writings, and, in general, to do any and all things and to take any and all actions that the Shareholder Representative may consider necessary or proper in connection with carrying out the responsibilities of the Shareholder Representative under Article IX of this Agreement and the Escrow Agreement.
(b) The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In deems necessary or proper in connection with this performing its obligations hereunder and under the Escrow Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any will be promptly reimbursed by the holders of the powers conferred upon Company Stock for all reasonable expenses, disbursements and advances incurred by the Shareholder Representative hereunderin such capacity upon demand, pro rata based upon each such holder’s share of the Company Stock as of the Closing. Each holder of the Company Stock shall indemnify and hold harmless the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnifyRepresentative, pro rata based upon such holder's percentage interest’s share of all Company Stock as of the Closing, from any and all Damages that are incurred by the Shareholder Representative against all lossesas a result of actions taken, damagesor actions not taken, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of by the Shareholder Representative hereunder. The foregoing indemnification shall not apply in herein, except to the event of any action or proceeding which finally adjudicates extent that such Damages arise from the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification misconduct of the Shareholder Representative.
(dc) All amounts received by the Shareholder Representative on behalf of the indemnitiesholders of the Company Stock (whether under this Agreement or the Escrow Agreement), immunities and powers granted will be promptly paid by the Shareholder Representative to the holders of the Company Stock, in accordance with Section 1.7; provided, however, that the Shareholder Representative will be entitled to set off any amounts payable to the Shareholder Representative under Section 10.13(b) against amounts otherwise payable to holders of the Company Stock pursuant to this Agreement shall survive the termination of this AgreementSection 10.13(c).
(ed) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company Parent and Surviving Corporation shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be not taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating heretothe Escrow Agreement, all of which actions or omissions shall be legally binding upon all the Shareholdersholders of the Company Stock.
(e) If at any time the Shareholder Representative resigns, dies or becomes incapable of acting, the holders of a majority of the Company Stock as of the Closing shall choose another holder to act as the Shareholder Representative under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Goldleaf Financial Solutions Inc.)
Shareholder Representative. (a) The Shareholders In the event that this Agreement is adopted by the Company Shareholders, effective upon such vote, and without any further action of any Indemnifying Party, Xxxx X. Xxxxxx shall be appointed as the Indemnifying Parties’ agent and attorney-in-fact as the Shareholder Representative for and on behalf of to give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to appoint one Person such claims, to act as their representative, attorney in fact and proxy for the Indemnifying Parties with respect to certain matters specified any shareholder vote or consent with respect to the Parent Common Stock held in the Escrow Fund, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than fifteen (15) days prior written notice to Parent; provided, however, that the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign not be removed unless holders of at any time, least a majority of the interest of the Escrow Fund agree to such removal and a to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment . Notices or communications to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of from the Shareholder Representative shall not have constitute notice to or from the effect Indemnifying Parties. The Indemnifying Parties shall, based on their Pro Rata Portions of releasing the Shareholders from any liability Escrow Fund, be responsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative in performing its duties under this Agreement, and the Shareholder Representative shall have the right to have any such fees and expenses reimbursed from the Escrow Fund prior to any distribution to the Indemnified Parties of any amounts in the Escrow Fund, to the extent available.
(b) The Shareholder Representative shall have not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of legal counsel shall be conclusive evidence of such powers and authority as are necessary good faith. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shallliability or expense incurred without gross negligence, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith or willful misconduct on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of ’s duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant to this Agreement shall constitute a decision of the Indemnifying Parties and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all the ShareholdersIndemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, ________ (a) The Shareholders agree to appoint one Person to act together with his permitted respective successors, collectively, the “Shareholder Representative”), as their representative, attorney in fact true and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timelawful agent and attorney-in-fact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative by his execution of this Agreement shall be appointed by a vote of Majority Holdersdeemed to have accepted such appointment, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from enter into any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement transactions contemplated by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 powers, authority and discretion conferred upon on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of any claim, action or proceeding for which any Company Shareholder or SOLS may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or (ii) in the absence of his own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any actions taken by the Shareholder Representative in his capacity as such, the Shareholder Representative shall incur have no responsibility whatsoever liability to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder SOLS, or any such other agreement, instrument or document, excepting only responsibility of its affiliates except for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata claims based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction fraud by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (ai) The In order to efficiently administer the transactions contemplated by this Plan of Arrangement, the Arrangement Agreement, the Escrow Agreement and the Rights Indenture, including: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders agree in accordance with the terms of this Plan of Arrangement, the Arrangement Agreement and the Ample Articles; (ii) the exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to appoint one Person to act as their representative, attorney in fact and proxy direct any votes with respect to certain matters specified the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Agreement Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the "exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; and (v) the defense and/or settlement of any claims for which the Ample Shareholder Representative"). The parties have designated Goeletmay be required to indemnify Akerna or Purchaser pursuant to the Arrangement Agreement, LLC the Shareholder Representative is hereby appointed as the initial true, exclusive and lawful representative, attorney-in-fact and agent for each Ample Shareholder Representative. in accordance with, and to the extent provided for, in the Arrangement Agreement and this Plan of Arrangement.
(ii) The Shareholder Representative is hereby authorized to make all decisions, take all actions or do any and all thing necessary relating to: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the terms of this Plan of Arrangement, the Arrangement Agreement and the Ample Articles; (ii) the exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to direct any votes with respect to the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement, (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; (v) the defense and/or settlement of any claims for which the Ample Shareholder may resign at be required to indemnify Akerna or Purchaser pursuant to the Arrangement Agreement; and (vi) any time, and a all additional actions contemplated to be taken by the Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% on behalf of the Registrable Securities at such time Ample Shareholders (or any of them) pursuant to the "Majority Holders"). In Arrangement Agreement, this Plan of Arrangement, the event of Escrow Agreement or the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative Rights Indenture.
(iii) Akerna and Purchaser shall be appointed by a vote of Majority Holders, such appointment able to become effective upon rely conclusively on the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal instructions and decision of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission decision or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, taken in accordance with such Shareholder's percentage interest. In the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture and no event Party shall the Company be responsible have any cause of action against Akerna or Purchaser for any reimbursement action taken in reliance upon the instructions or indemnification decisions of the Shareholder Representative.
(div) All No Ample Shareholder shall have any cause of the indemnities, immunities and powers granted to action against the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contraryfor any action taken, each Shareholder hereby acknowledges that the Company shall not have any responsibility decision made or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction instruction given by the Shareholder Representative.
(f) Representative in accordance with the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture, except for fraud or wilful breach by the Shareholder Representative of the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture. The Company Shareholder Representative shall have the right not be liable to rely conclusively upon all instructions, requests, consents, elections and other actions any Ample Shareholder for any action taken or omitted to be taken by them in connection with the Shareholder Representative pursuant to Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture in good faith and any instrument, agreement or document relating hereto, all in the exercise of which actions or omissions shall be legally binding upon all the Shareholderstheir reasonable judgment.
Appears in 1 contract
Samples: Arrangement Agreement (Akerna Corp.)
Shareholder Representative. (a) The Shareholders agree By virtue of the approval of the Merger and this Agreement by the Indemnifying Parties and/or entering into a Joinder Agreement, each of the Indemnifying Parties shall be deemed to have agreed to appoint one Person Xxxxxxxxxxx Xxxxx Xxxxxxx as its agent and attorney-in-fact as the Shareholder Representative for and on behalf of the Indemnifying Parties to do and perform every act as their representativeand thing reasonably necessary or desirable to be done in connections with the transactions contemplated by the Agreement, attorney including without limitation:
(i) to give and receive notices and communications under this Agreement, the Escrow Agreement and any Expense Escrow Agreement,
(ii) to determine the presence (or absence) of claims for payment pursuant to this Agreement, the Escrow Agreement and the Expense Escrow Agreement, and to authorize delivery to the Indemnified Parties of cash and Escrow Shares from the Escrow Fund in fact satisfaction of claims by Indemnified Parties, and proxy to make payments from the Shareholder Representative Fund;
(iii) to object to and defend against such claims under this Agreement, and to agree to, negotiate, enter into settlements, adjustments and compromises of, and comply with orders of courts and awards with respect to certain matters specified in this Agreement such claims;
(the "Shareholder Representative"). The parties have designated Goeletiv) undertake legal action with respect to such claims, LLC to assert, negotiate, enter into settlements and compromises of any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party;
(v) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as the initial Shareholder RepresentativeRepresentative reasonably deems necessary or prudent in connection with the administration of his duties hereunder;
(vi) to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party; and
(vii) to take all actions that are either (A) deemed necessary, desirable or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (B) specifically mandated by the terms of this Agreement, including entering into the Escrow Agreement and the Expense Escrow Agreement; in each case relating to this Agreement, the Escrow Agreement and the Expense Escrow Agreement or the transactions contemplated hereby and thereby. The Shareholder Representative may resign as Shareholder Representative at any timetime with or without cause by giving 30 days prior written notice to the holders of interest of the Escrow Fund, Parent and Escrow Agent, such resignation to be effective no sooner than 30 days following the date such notice is given. In addition, such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. A vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% two-thirds in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, disability, resignation or removal of the Shareholder Representative, a new successor or replacement Shareholder Representative shall be appointed by a vote no later than ten days following the last date of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal service of the Shareholder Representative shall not have that is being replaced. In the effect of releasing the Shareholders from any liability under this Agreement.
(b) The event that a successor Shareholder Representative shall have is not appointed within such powers ten day period, the Parent, Escrow Agent and authority as are necessary to carry out the functions assigned other parties to the Shareholder Representative under this Agreement; provided, however, that Escrow Agreement and the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Expense Escrow Agreement shall be entitled to rely on any directions received action of the holders of a two-thirds interest of the Escrow Fund as the action of all of the holders in interest of the Escrow Fund, and such two-thirds interest of holders shall have all of the rights and duties of the Shareholder Representative hereunder and under the Escrow Agreement and Expense Escrow Agreement. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from the Majority HoldersShareholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of all the holders in interest of the Escrow Fund for whom a portion of the Escrow Amount or Expense Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and the Shareholder Representative Fund and shall be final, conclusive and binding upon each of such holders in interest of the Escrow Fund, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each every such Shareholder and Optionholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative
(c) The Shareholder Representative shall not, by reason of this Agreement, have a fiduciary relationship in respect of any Shareholder or Optionholder. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative or by any agent employed by him, except to the extent that he is determined to have acted with gross negligence or willful misconduct. Any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that the Shareholder Representative did not act with gross negligence or willful misconduct. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall, at severally and not jointly (based on their Pro Rata Portion), indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, Liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative. In the event that the Shareholder Representative pays any amounts to any Person in connection with the transactions contemplated by this Agreement or the Escrow Agreement or the Expense Escrow Agreement, investigationor incurs any liability for which he is entitled to indemnification by the Recipients under this Agreement, challengethe Escrow Agreement or the Expense Escrow Agreement, action or proceeding incurs any expenses (including attorneys or accounting fees) pursuant thereto or in connection therewith or pays any fees or taxes on behalf of the Shareholders or Optionholders thereunder (a “Shareholder Representative Expense”), the Shareholder Representative shall be reimbursed for such Shareholder Representative Expenses (or may have funds to cover such expenses advanced) from the Shareholder Representative Fund Amount, which will be deposited by Parent into an account established under the Expense Escrow Agreement for use by the Shareholder Representative (the “Shareholder Representative Fund”).
(d) The Shareholder Representative Fund shall be available to compensate the Shareholder Representative for any Shareholder Representative Expenses and to pay any third party expenses incurred in connection with the defense, investigation or settlement of any appeal thereofclaim from an Indemnified Party or any Third Party Claim under or related to this Agreement, relating as well as any costs or expenses associated with the Shareholder Representative Fund. At any time and from time to time, the Shareholder Representative may deliver to the acts Escrow Agent written instructions instructing the Escrow Agent to distribute all or omissions a portion of the Expense Escrow Amount. In accordance with the terms set forth in the Expense Escrow Agreement, the Escrow Agent shall disburse to the Shareholder Representative (or any Person who the Shareholder Representative designates as the recipient of such disbursement in his written instructions) funds from the Shareholder Representative Fund in an amount and in the manner set forth in such written instructions (up to the amount that is available in the Shareholder Representative Fund). For the avoidance of doubt, it is hereby acknowledged and agreed that: (A) the Escrow Agent shall be entitled to rely conclusively on the written instructions of the Shareholder Representative hereunder. The foregoing indemnification with respect to the Shareholder Representative Fund; (B) Parent’s consent shall not apply in be required to release any funds from the event of any action Shareholder Representative Fund and Parent shall have no right or proceeding which finally adjudicates standing to object to the liability release or holding of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In Fund; and (C) the event of any indemnification hereunder, upon written notice from Shareholder Representative shall have the sole authority to instruct the release or holding of the Shareholder Representative Fund. If the Shareholder Representative shall have delivered written instructions to the Shareholders as Escrow Agent instructing the Escrow Agent to release funds from the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver Shareholder Representative Fund to the Shareholder Representative full payment and there are not sufficient funds in the Shareholder Representative Fund to cover such requested amount, the difference between the amount requested to be released by the Shareholder Representative from the Shareholder Representative Fund to the amount actually released to the Shareholder Representative may be recovered by the Shareholder Representative from the Escrow Fund amounts otherwise distributable to the Indemnifying Parties pursuant to the Escrow Agreement at the time of his such distribution; provided, that while this section allows the Shareholder Representative to be paid from the Escrow Fund, this does not relieve the Shareholders and Optionholders from their obligation to promptly pay their pro rata portion of any such losses, liabilities or her ratable share expenses (based on the Pro Rata Portion, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. Prior to any such distribution from the Escrow Fund, the Shareholder Representative shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A written and signed decision, act, consent or instruction of the amount Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and the Escrow Agent and Parent may rely upon any such deficiencydecision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any Liability to any person for any acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Rambus Inc)
Shareholder Representative. (a) The Designated Shareholders agree and the Other Shareholders shall designate a representative prior to appoint one Person the Closing Date to act be constituted and appointed as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement agent (the "Shareholder Representative"). The parties have designated Goelet) for and on behalf of the Designated Shareholders and Other Shareholders to give and receive notices and communications, LLC as to agree to, negotiate, and enter into, on behalf of all Designated Shareholders and Other Shareholders, amendments, consents and waivers under this Agreement (including Section 5.2 hereof) and the initial Shareholder Representative. The Escrow Agreement, to enter into and administer, on behalf of the Designated Shareholders or Other Shareholders, the Escrow Agreement, to authorize delivery to Parent of the Common Stock or other property from the Escrow Fund in satisfaction of indemnification claims in accordance with the Escrow Agreement, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative may resign at any timefor the accomplishment of the foregoing; provided, and a however, that the Shareholder Representative may be removed at shall not agree to any time by amendment that would materially adversely affect the vote rights of Shareholders who collectively own more any Designated Shareholder or Other Shareholder without the written consent of Indemnitors holding greater than 50% of the Registrable Securities at shares of Common Stock received by all Indemnitors pursuant to the Merger, or that adversely affects any Designated Shareholder or Other Shareholder disproportionately from other parties without the consent of such time (Designated Shareholder or Other Shareholders. Such agency may be changed by the "Majority Holders"). In the event holders of a majority in interest of the death, resignation or removal Designated Shareholders and Other Shareholders from time to time upon not less than 10 days' prior written notice to Parent. No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive no compensation for his services. Notices or communications to or from the effect Shareholder Representative shall constitute notice to or from each of releasing the Designated Shareholders from any liability under this Agreementand Other Shareholders.
(b) The Shareholder Representative shall have not be liable for any act done or omitted hereunder or under the Escrow Agreement as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such powers and authority as are necessary to carry out the functions assigned to good faith. The Company shareholders shall severally indemnify the Shareholder Representative under this Agreement; providedand hold him harmless against any loss, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on Representative and arising out of or in connection with the opinions and advice acceptance or administration of such Personshis duties hereunder.
(c) The Shareholder Representative shall not be entitled have reasonable access to any fee, commission or other compensation information about the Company and the reasonable assistance of the Company's and Parent's officers and employees for the performance purposes of performing its services duties and exercising its rights hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, provided that the Shareholder Representative shall incur no responsibility whatsoever to treat confidentially and not disclose any Shareholder by reason of any error in judgment nonpublic information from 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall about the Company be responsible for any reimbursement or indemnification of the Shareholder RepresentativeParent to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree By virtue of the approval of the Merger and this Agreement by the Shareholders, each of the Securityholders shall be deemed to have agreed to appoint one Person Rxxxxx Xxxxxxx as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Securityholders to act as their representativegive and receive notices and communications, attorney to authorize payment to any Indemnified Party from the Escrow Fund in fact satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Securityholder or by any such Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Securityholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any timenot be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, and a vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementSecurityholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Securityholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of the Escrow Period, investigationthe resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, challenge, action or proceeding or in connection with the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any appeal thereof, relating distribution to the acts Securityholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. To the extent that the amount of funds in the Escrow Fund (after resolution of all Unresolved Claims and the satisfaction of all claims for Losses) is insufficient to reimburse the Shareholder Representative for all Shareholder Representative Expenses, each Securityholder agrees to reimburse the Shareholder Representative promptly on demand in proportion to its Pro Rata Portion for any Shareholder Representative Expenses that are not so paid to the Shareholder Representative out of the Escrow Fund. A decision, act, consent or omissions instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Securityholders and shall be final, binding and conclusive upon the Securityholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Securityholders. The foregoing indemnification shall not apply in the event of Escrow Agent and Parent are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in For purposes of this Agreement the shareholders of SoftMagic, without any further action on the part of any such shareholder, shall be deemed to have consented to the appointment of Xxxxxxxx Xxxxx Sant'Xxxx as the representative of such shareholders (the "Shareholder Representative"), as the attorney-in-fact for and on behalf of each such shareholder, and the taking by the Shareholder Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement, including, without limitation, the exercise of the power to (i) execute the Escrow Agreement, (ii) authorize delivery to Puma of the Escrow Shares, or any portion thereof, in satisfaction of Indemnification Claims, (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (iv) resolve any Indemnification Claims, and (v) take all actions necessary in the judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each shareholder of SoftMagic with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The parties have designated Goeletshareholders of SoftMagic will be bound by all actions taken by the Shareholder Representative in connection with this Agreement, LLC as and Puma shall be entitled to rely on any action or decision of the initial Shareholder Representative. The Shareholder Representative may resign at will incur no liability with respect to any timeaction taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and a to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Representative may rely on the advice of counsel, and the Shareholder Representative will not be removed at liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice. The Shareholder Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. At any time by during the vote of Shareholders who collectively own more than 50% term of the Registrable Securities at such time (the "Majority Holders"). In the event Escrow Agreement, holders of a majority of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to Escrow Shares can appoint a new Shareholder Representative by written consent by sending notice and a copy of the written consent appointing such new Shareholder Representative signed by holders of a majority of the Escrow Shares to Puma and the Escrow Agent. Such appointment will be effective upon the death, resignation or removal later of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (date indicated in the absence of bad faith on consent or the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of date such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement consent is received by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees Puma and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder RepresentativeEscrow Agent.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Puma Technology Inc)
Shareholder Representative. (a) The Each of the Closing Date Principal Shareholders agree to appoint one Person hereby irrevocably appoints Riverstone/Carlyle Global Energy and Power Fund IV (Cayman), L.P. (the “Shareholder Representative”) as such Closing Date Principal Shareholder’s representative, attorney-in-fact and agent, with full power of substitution to act as their representativein the name, attorney in fact place and proxy with respect stead of such Closing Date Principal Shareholder, to certain matters specified in act for and on behalf of such Closing Date Principal Shareholder to take any and all actions and make any and all decisions which under this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of which the Shareholder Representative shall not have is expressly authorized to act or make, including the effect power:
(i) to take any and all action necessary or desirable in connection with the waiver of releasing any condition to the obligations of the Closing Date Principal Shareholders from any liability under to consummate the transactions contemplated by this Agreement;
(ii) to receive on behalf of the Closing Date Principal Shareholders notice of all indemnification claims by a Parent Indemnified Party pursuant to Article IX and to notify all Closing Date Principal Shareholders of any such claim and to take all actions in connection with such indemnifications claims on behalf of the Closing Date Principal Shareholders as may be necessary or desirable; and
(iii) to give instructions to the Escrow Agent in connection with the release of the Indemnification Escrow Amount as contemplated by Section 9.6(f). Each of the Closing Date Principal Shareholders hereby consents to and confirms such appointment and the taking by the Shareholder Representative of any and all such acts and the making of any and all such decisions. Each of the Closing Date Principal Shareholders will be bound by any and all actions taken and any and all decisions made by the Shareholder Representative pursuant to the terms of this Section 10.3, and Parent and the Surviving Company will be entitled to rely on any such actions or decisions.
(b) The Shareholder Representative shall have such powers and authority will not be liable for any act taken or omitted by it as are necessary to carry out the functions assigned to the Shareholder Representative permitted under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided hereinif taken or omitted in bad faith or by willful misconduct. The Shareholder Representative will at all times also be entitled fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to rely on any directions received from be genuine (including facsimiles thereof).
(c) The Closing Date Principal Shareholders agree, severally but not jointly, to indemnify the Majority Holders. The Shareholder Representative shallfor, at and to hold the Shareholder Representative harmless against, any loss, liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without willful misconduct or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claimthe Shareholder Representative’s carrying out its duties under this Agreement, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions including costs and expenses of successfully defending the Shareholder Representative hereunderagainst any claim of liability with respect thereto. The foregoing indemnification shall not apply in To the event of any action or proceeding which finally adjudicates the liability of extent the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In is entitled to any amount as a result of an indemnity claim under this Section 10.3(c), such amount shall be paid by the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Closing Date Principal Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, pro rata based on each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share Closing Date Principal Shareholder’s relative percentage ownership of the aggregate amount of Outstanding Shares held by the Closing Date Principal Shareholders at Closing, as set forth opposite such deficiency, in accordance with such Closing Date Principal Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative’s name on Schedule 3.4.
(d) All In the event the Shareholder Representative becomes unable or unwilling to continue to serve in the capacity of Shareholder Representative, he may resign and be discharged from his duties and obligations as Shareholder Representative by giving his resignation to each of the indemnitiesParties, immunities specifying a date not less than ten days following such notice date of when such resignation will take effect and, in that event, Riverstone/Carlyle Energy Partners IV, L.P. will be deemed to be appointed by the Closing Date Principal Shareholders as the new Shareholder Representative and powers granted shall, for all purposes of this Agreement, be the Shareholder Representative. In the event Riverstone/Carlyle Energy Partners IV, L.P. then becomes unable or unwilling to continue in its capacity as Shareholder Representative, Riverstone/Carlyle Energy Partners IV, L.P. may resign and be discharged from its duties or obligations hereunder by giving its resignation to each of the Parties, specifying a date not less than ten days following such notice date of when such resignation will take effect. In that event, Closing Date Principal Shareholders representing at least a majority of the Outstanding Shares at the Closing (the “Closing Date Majority”) will designate a successor representative prior to the expiration of such ten-day period by giving written notice to Parent. At any time, the Closing Date Majority may remove the Shareholder Representative, provided that a successor Shareholder Representative is appointed at the same time. Until notified in writing by the Shareholder Representative that Riverstone/Carlyle Energy Partners IV, L.P. has resigned or by the Closing Date Principal Shareholders that the Shareholder Representative has been removed, Parent may rely conclusively and act upon the directions, instructions and notices of the last known Shareholder Representative and, after such notice, upon the directions, instructions and notices of any successor.
(e) The Shareholder Representative will not be entitled to receive any compensation from Parent, the Surviving Company or the Closing Date Principal Shareholders in connection with performing its functions as the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections . Any out-of-pocket costs and other actions taken or omitted to be taken expenses reasonably incurred by the Shareholder Representative in connection with actions taken pursuant to the terms of this Agreement and any instrumentwill be paid by the Closing Date Principal Shareholders pro rata based on each Closing Date Principal Shareholder’s relative percentage ownership of the aggregate amount of Outstanding Shares held by the Closing Date Principal Shareholders at Closing, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersas set forth opposite such Closing Date Principal Shareholder’s name on Schedule 3.4.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to By virtue of their approval of the Merger, the Rights Holders, without any further action on the part of any Rights Holders, irrevocably constitute and appoint one Person to act Elron Electronic Industries Ltd. as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement the representative of the Rights Holders (the "Shareholder Representative"), as the attorney-in-fact for and on behalf of each such Right Holder, and the taking by the Shareholder Representative of any and all actions and the making of any decisions required or permitted to be taken by it under this Agreement, including the exercise of the power to (a) authorize delivery to Buyer and Sub of the Escrow Amount, or any remaining portion thereof, in satisfaction of any Indemnification Claims made pursuant to Section 7.2(a) hereof, (b) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and, if applicable, awards of arbitrators with respect to such Indemnification Claims, (c) resolve any Indemnification Claims, (d) execute, perform and handle such actions as provided in and pursuant to the Escrow Agreement and Paying Agent Agreement, and (e) take all actions necessary in the judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each Rights Holder with respect to this Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement including, but not limited to, the authority and power to receive notices on behalf of the Rights Holders..
(b) Any notice provided to the Shareholder Representative shall be deemed to have been provided to all Rights Holders. The parties have designated GoeletRights Holders shall be bound by all actions taken by the Shareholder Representative in connection with this Agreement, LLC as and Buyer and Sub shall be entitled to rely on any action or decision of the initial Shareholder Representative. The Shareholder Representative shall incur no liability with respect to any action taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own willful misconduct. In all questions arising under this Agreement, the Shareholder Representative may resign at rely on the advice of counsel, and the Shareholder Representative shall not be liable to the Rights Holders for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice. The Shareholder Representative shall not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it.
(c) The Rights Holders shall jointly and severally indemnify and hold harmless the Shareholder Representative from and against any and all Losses (including reasonable legal and expert fees and expenses incurred by the Shareholder Representative in investigating or defending (including any appeal) any claim for indemnification made against the Rights Holders pursuant to a Indemnification Claim, arising out of and in connection with its activities as Shareholder Representative under this Agreement or any Transaction Document or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby.
(d) At any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to Shareholders can appoint a new Shareholder Representative (whether as a result of the resignation of the existing Shareholder Representative which may be made upon a 30-day prior notice to the Majority Shareholders or otherwise) by written consent by sending notice and a copy of the written consent appointing such new Shareholder Representative signed by such holders to Buyer. Such appointment shall be effective upon the death, resignation or removal later of the date indicated in the consent or the date such consent is received by Buyer and Sub (or, if after the Effective Time, the Surviving Corporation).
(e) The Shareholder Representative Representative, in its capacity as such, shall not have the effect of releasing the Shareholders from any liability with respect to Buyer, Sub or any of the other Buyer Indemnitees under or in connection with this Agreement.
(bf) The All decisions, actions, consents and instructions by the Shareholder Representative shall have such powers be binding upon all the Rights Holders. Buyer and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Sub shall be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shalldecision, at the expense of the Shareholdersaction, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part consent or instruction of the Shareholder Representative) shall be entitled Representative as being the decision, action, consent or instruction of the Rights Holders and Buyer and Sub are hereby relieved from any liability to conclusively rely on the opinions and advice of any Person for acts done by them in accordance with any such Personsdecision, act, consent or instruction.
(cg) The Notwithstanding anything to the contrary in this Agreement but subject to any Tax withholding requirement under Applicable Laws, on the Effective Time, the amount of the Shareholder Representative Fund shall be deposited by Buyer with the Paying Agent (and not to the Rights Holders), such amount being intended for use by the Shareholder Representative, and released to it by the Paying Agent from time to time at its request, in its discretion, in covering out-of-pocket expenses incurred (or to be incurred) by it (if at all) in carrying out its duties hereunder. Such amount shall be deducted from the Closing Payment payable to the Rights Holders, based on their respective Pro-Rata Portions of such amounts. Payments to the Shareholder Representative shall not be entitled made to any fee, commission or other compensation for a bank account specified by it in writing. As set forth in the performance of its services hereunder, but shall be entitled to Paying Agent Agreement and the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Escrow 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever have the authority to any Shareholder by reason instruct the Paying Agent and/or the Escrow Agent, prior to the distribution of any error portion of the Merger Consideration to the Rights Holders in judgment accordance with the provisions hereof and thereof, to withhold a portion of such amount or other act or omission performed or omitted hereunder or pay a portion of any such other agreement, instrument or document, excepting only responsibility for any act or failure amount (as applicable) to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of such portion being intended for use by the Shareholder Representative, in its discretion, in covering out-of-pocket expenses incurred or reasonably expected to be incurred by it (if at all) in carrying out its duties hereunder, and exceeding the Shareholder Representative Fund (any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating such amounts shall be deducted from all Rights Holders Pro-Rata between them). The Shareholder Representative may instruct the Paying Agent to invest and handle the acts or omissions amounts of the Shareholder Representative hereunderFund and any additional amounts so withheld by the Paying Agent as provided in this Section 7.6(g) until the allocation or payment thereof, as the case may be, according to its commercial reasonable discretion. The foregoing indemnification Promptly after the later of the Escrow Termination Date and last Earnout Payment Date, or, if Indemnification Claims are outstanding on such date, promptly after the date of settlement of all such claims, the Shareholder Representative, through the Paying Agent, shall not apply in the event of allocate and pay any action or proceeding which finally adjudicates the liability remaining amount of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event Fund and of any indemnification hereunderexcess amounts so withheld by the Paying Agent and any interest accrued thereon, upon written notice from Shareholder Representative to the Shareholders as Rights Holders, based on their Pro-Rata Portions, subject to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiencyTax withholding requirement under Applicable Laws, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativesame manner set forth in Section 2.6.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Alvarion LTD)
Shareholder Representative. (a) 7.1 The Shareholders agree to appoint one Person to act hereby designate Xxxxx Xxxxx as their representative, attorney authorized representative and attorney-in-fact to undertake and perform in fact their name and proxy with respect to certain matters specified on their behalf the duties and responsibilities of the Shareholder Representative set forth in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder RepresentativeAgreement. The Shareholder Representative may resign at accepts and agrees to discharge diligently the duties and responsibilities of the Shareholder Representative set forth in this Agreement. SM&A and the Escrow Agent shall be entitled to rely upon the authorization and designation of the Shareholder Representative under this Section 7. ---------
7.2 The Shareholder Representative is authorized to take any timeaction he deems appropriate or necessary to carry out the provisions of, and a Shareholder Representative may be removed at any time by to determine the vote of Shareholders who collectively own more than 50% rights of the Registrable Securities at such time Shareholders under, this Agreement, including without limitation, taking any action required or permitted under this Agreement to protect or enforce the Shareholders' rights to the Escrow Funds. The Shareholder Representative's authority includes but is not limited to:
(a) receiving all notices or other documents given or to be given pursuant to this Agreement or in connection with the "Majority Holders"). transactions contemplated hereby;
(b) engaging special counsel, accountants, investment banks or other advisors;
(c) prosecuting and settling any dispute in connection with this Agreement, including without limitation the resolution of any disputes related to disbursements of the Escrow Funds; and
(d) paying all expenses of the Shareholders incurred in connection with this Agreement and the transactions contemplated hereby.
7.3 In the event of the death, resignation resignation, discharge or removal incapacity of the Shareholder Representative, Xxxx Xxxxx shall be treated as the successor Shareholder Representative.
7.4 The Shareholder Representative shall keep the Shareholders reasonably informed of his decisions of a new material nature.
7.5 The Shareholder Representative shall diligently discharge his duties and responsibilities under this Agreement. The Shareholder Representative shall not be liable to any Shareholder for any action taken or omitted by the Shareholder Representative in good faith, or for any mistake of fact or law, unless caused by his own gross negligence or willful misconduct.
7.6 The Shareholder Representative shall be appointed entitled to treat as genuine any letter or other document furnished to him by a vote of Majority Holders, such appointment SM&A or the Escrow Agent and reasonably believed by him to become effective upon the written acceptance thereof be genuine and have been signed and presented by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation proper party or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreementparties.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) 7.7 The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but .
7.8 SM&A shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred treat as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and genuine 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment letter 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 document furnished to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken it by the Shareholder Representative pursuant or the Escrow Agent and reasonably believed by it to this Agreement be genuine and any instrument, agreement have been signed and presented by the proper party or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersparties.
Appears in 1 contract
Samples: Escrow Agreement (Sm&a Corp)
Shareholder Representative. (a) The Shareholders agree By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, and by the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to appoint one Person to act receive the consideration payable in connection with the Merger, each Shareholder shall have irrevocably authorized and appointed Shareholder Representative as their of the Closing as such Person’s representative, agent and attorney in fact and proxy to act on behalf of such Person with respect to certain this Agreement, the Promissory Note and any other agreements ancillary hereto and to take any and all actions and make any decisions required or permitted to be taken by Shareholder Representative pursuant to this Agreement, the Promissory Note or such other ancillary agreements, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters specified described in Section 2.16;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Promissory Note);
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Note);
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing. After the Closing, Parent shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement (including Article VIII) (except with respect to any payments required to be made by the "Shareholders directly) and 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 Shareholder by Shareholder Representative"), and on any other action taken or purported to be taken on behalf of any Shareholder by Shareholder Representative, as being fully binding upon such Person. After the Closing notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and shall be final, binding and conclusive upon each such Person. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The parties have designated Goeletprovisions of this Section, LLC as including the initial Shareholder Representative. power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Shareholders, or by operation of Law, whether by death or other event.
(b) The Shareholder Representative may resign at any time, . and a the Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time Shareholders according to each Shareholder’s Pro Rata Share (the "“Majority Holders"”); provided, however, in no event shall Shareholder Representative be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Parent, such appointment to become be effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal later of the Shareholder Representative shall not have date indicated in such consent or the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have date such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementnotice is received by Parent; provided, howeverthat until such notice is received, that Parent, Merger Sub and the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Surviving Corporation shall be entitled to rely on any directions received from the Majority Holders. The decisions and actions of the prior Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary described in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder RepresentativeSection 10.1(a) shall be entitled to conclusively rely on the opinions and advice of such Personsabove.
(c) The Shareholder Representative will incur no liability of any kind with respect to any action or omission by it in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholder Representative’s gross negligence or willful misconduct. The Shareholder Representative shall not be entitled to liable for any fee, commission action or other compensation for the performance of its services hereunder, but shall be entitled omission pursuant to the reimbursement by advice of counsel. The Shareholders shall indemnify, defend and hold harmless the Shareholders of Shareholder Representative from and against any and all hislosses, her or its liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses incurred as the Shareholder of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, Losses”) arising out of or in connection with the Shareholder Representative’s execution and performance of this Agreement and any claimagreements ancillary hereto, investigationin each case as such Representative Loss is suffered or incurred; provided, challenge, action that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or proceeding or in connection with any appeal thereof, relating to the acts or omissions willful misconduct of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of Representative, the Shareholder Representative hereunder for his or her will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver If not paid directly to the Shareholder Representative full payment by the Shareholders, any such Representative Losses may be recovered by the Shareholder Representative from (i) the Expense Escrow Amount and (ii) any other funds that become payable to the Shareholders under this Agreement at such time as such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of his funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or her ratable share of incurred, nor does it prevent the amount of such deficiency, in accordance with such Shareholder's percentage interestShareholder Representative from seeking any remedies available to it at law or otherwise. In no event shall will the Company Shareholder Representative be responsible for required to advance its own funds on behalf of the Shareholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any reimbursement restrictions or limitations on liability or indemnification of obligations of, or provisions limiting the Shareholder Representative.
(d) All of recourse against non-parties otherwise applicable to, the indemnities, immunities and powers granted Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Agreement shall section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(fd) The Company shall have Expense Escrow Amount will be used for the right to rely conclusively upon all instructionspurposes of paying directly, requests, consents, elections and other actions taken or omitted to be taken by reimbursing the Shareholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Shareholders will not receive any instrumentinterest or earnings on the Expense Escrow Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of principal of the Expense Escrow Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative will hold these funds separate from its corporate funds, agreement will not use these funds for its operating expenses or document relating heretoany other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Shareholder Representative’s responsibilities, all the Shareholder Representative will deliver any remaining balance of which actions or omissions shall be legally binding upon all the Expense Escrow Amount to the Escrow Agent for further distribution to the Shareholders. For tax purposes, the Expense Escrow Amount will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing.
Appears in 1 contract
Shareholder Representative. (a) By the execution and delivery of this Agreement, each of the Shareholder hereby irrevocably constitutes and appoints Ft. Xxxx (the “Shareholder Representative”), and Ft. Xxxx hereby accepts such appointment, as the true and lawful agent and attorney-in-fact of the Shareholders with full power of substitution to act in the name, place and stead of the Shareholders and to act on behalf of the Shareholders in any litigation or arbitration involving this Agreement and the Transactions, do or refrain from doing all such further acts and things, and execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the Transactions, including, without limitation, the power:
(i) to act for the Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Shareholders and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the Transactions;
(iii) to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price;
(iv) to do or refrain from doing any further act or deed on behalf of the Shareholders that the Shareholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Shareholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and shall be binding upon the successors, heirs, executors, administers and legal representatives of each Shareholder and shall not be affected by, and shall survive, the death, incapacity, bankruptcy, dissolution or liquidation of any Shareholder. All decisions, actions, consents and instructions by the Shareholder Representative shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent, the Buyer, each Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholder Representative in all matters referred to herein. All notices required to be made or delivered by the Parent, the Buyer or any Company to the Shareholders shall be made to the Shareholder Representative for the benefit of the Shareholders and shall discharge in full all notice requirements of the Parent, the Buyer and such Company to the Shareholders with respect thereto. The Shareholders agree hereby confirm all that the Shareholder Representative shall do or cause to appoint one Person to be done by virtue of his appointment as the Shareholder Representative of the Shareholders. The Shareholder Representative shall act as their representative, attorney in fact and proxy with respect to certain for the Shareholders on all of the matters specified set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interest of the Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Shareholders for any loss or damages the Shareholders may suffer by the performance by the Shareholder Representative of its duties under this Agreement, other than loss or damage arising from willful violation of the Law by the Shareholder Representative or gross negligence in the performance by the Shareholder Representative of its duties under this Agreement.
(the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. c) The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% holding a majority of the Registrable Securities at such time Shares as of the Closing (the "“Majority Holders"Shareholders”), with the prior consent of Buyer, not to be unreasonably withheld. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Shareholders, with the prior consent of Buyer, not to be unreasonably withheld. Notice of such vote or a vote copy of Majority Holdersthe written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to become be effective upon the written acceptance thereof later of the date indicated in such consent or the date such consent is received by Buyer; provided, that until such notice is received, Parent, Buyer, Ft. Xxxx and TPS, as applicable, shall be entitled to rely on the new Shareholder Representative. Any failure by decisions, actions, consents and instructions of the Majority Holders to appoint a new prior Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreementas described in Section 14.14(a).
(bd) The Shareholder Representative shall have such powers and authority as are necessary be entitled to carry out the functions assigned to reimbursement from the Shareholder Representative under this Agreement; provided, however, that Expense Fund and/or otherwise received by it in its capacity as the Shareholder Representative will have no obligation pursuant to act on behalf or in connection with this Agreement, for all reasonable expenses, disbursements and advances (including fees and disbursements of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such its counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representativeconsultants) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement incurred by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreementin such capacity; provided, and any instrumentthat, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward than the payment of contemplated under Section 3.5 hereof, neither Parent, Buyer nor the Companies shall have any such indemnification amount, each such holder shall promptly deliver monetary obligation or liability to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(de) All of the indemnitiesEach Shareholder, immunities severally but not jointly, agrees to indemnify and powers granted to hold harmless the Shareholder Representative under this Agreement shall survive the termination and his agents and other representatives from and against its Pro Rata Share of this Agreement.
any losses, liabilities, expenses (e) Notwithstanding anything herein to the contraryincluding reasonable attorneys’ fees), each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any judgments, fines and amounts incurred by such Shareholder or to any other party with respect to or Persons arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by in the Shareholder Representative’s capacity as the Shareholder Representative pursuant to this Agreement (except for those arising out of the Shareholder Representative’s gross negligence or willful misconduct), including the costs and any instrument, agreement or document relating hereto, all expenses of which actions or omissions shall be legally binding upon all the Shareholdersinvestigation and defense of claims.
Appears in 1 contract
Samples: Asset Purchase Agreement (Meta Financial Group Inc)
Shareholder Representative. (a) The Shareholders agree Parties have agreed that it is desirable to appoint one Person designate Bxxxx Xxxxxx (and if Bxxxx Xxxxxx is unable or unwilling to act serve, then Mxxx Xxxxxx) to serve as their representative, attorney in fact and proxy with respect to the representative of the holders of the Company Stock (the “Shareholder Representative”) for certain matters specified in limited purposes as set forth herein. The approval of this Agreement (by the "Shareholder Representative"). The parties have designated Goelet, LLC as holders of the initial Shareholder RepresentativeCompany Stock will constitute ratification and approval of such designation. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall will have such powers power and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement and the Escrow Agreement; provided, howeverincluding the power and authority:
(i) to execute and deliver the Escrow Agreement, and to enter into any amendments, modifications and/or waivers in respect thereof;
(ii) to enforce, defend and protect the rights and interests of the holders of the Company Stock following the Closing under Article IX of this Agreement and under the Escrow Agreement, and to take any and all actions that the Shareholder Representative will have no obligation to act believes are necessary or appropriate under Article IX of this Agreement and under the Escrow Agreement for and on behalf of the Shareholdersholders of the Company Stock, except as expressly provided herein. including, without limitation, asserting, pursuing or defending any claim by or against Parent or the Surviving Corporation, consenting to, compromising or settling any such claim, and conducting negotiations with Parent or Surviving Corporation; and
(iii) to make, execute, acknowledge and deliver all such other agreements, notices, requests, instructions and other writings, and, in general, to do any and all things and to take any and all actions that the Shareholder Representative may consider necessary or proper in connection with carrying out the responsibilities of the Shareholder Representative under Article IX of this Agreement and the Escrow Agreement.
(b) The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In deems necessary or proper in connection with this performing its obligations hereunder and under the Escrow Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any will be promptly reimbursed by the holders of the powers conferred upon Company Stock for all reasonable expenses, disbursements and advances incurred by the Shareholder Representative hereunderin such capacity upon demand, pro rata based upon each such holder’s share of the Company Stock as of the Closing. Each holder of the Company Stock shall indemnify and hold harmless the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnifyRepresentative, pro rata based upon such holder's percentage interest’s share of all Company Stock as of the Closing, from any and all Damages that are incurred by the Shareholder Representative against all lossesas a result of actions taken, damagesor actions not taken, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of by the Shareholder Representative hereunder. The foregoing indemnification shall not apply in herein, except to the event of any action or proceeding which finally adjudicates extent that such Damages arise from the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification misconduct of the Shareholder Representative.
(dc) All amounts received by the Shareholder Representative on behalf of the indemnitiesholders of the Company Stock (whether under this Agreement or the Escrow Agreement), immunities and powers granted will be promptly paid by the Shareholder Representative to the holders of the Company Stock, in accordance with Section 1.7; provided, however, that the Shareholder Representative will be entitled to set off any amounts payable to the Shareholder Representative under Section 10.13(b) against amounts otherwise payable to holders of the Company Stock pursuant to this Agreement shall survive the termination of this AgreementSection 10.13(c).
(ed) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company Parent and Surviving Corporation shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be not taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating heretothe Escrow Agreement, all of which actions or omissions shall be legally binding upon all the Shareholdersholders of the Company Stock.
(e) If at any time the Shareholder Representative resigns, dies or becomes incapable of acting, the holders of a majority of the Company Stock as of the Closing shall choose another holder to act as the Shareholder Representative under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Geisel Brian R)
Shareholder Representative. (a) The Shareholders agree to -------------------------- appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder ----------- Representative"). The parties have designated Goelet, Goelet LLC as the initial -------------- Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or ---------------- removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the -------- ------- Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree Each Shareholder hereby designates and appoints (and each permitted Transferee of each such Shareholder is hereby deemed to appoint one Person have so designated and appointed) Xxxxxx X. Xxxx (the “Shareholder Representative”), as its attorney-in-fact with full power of substitution, to act serve as their representativethe representative of such Shareholder to perform all such acts as are required, attorney in fact and proxy with respect to certain matters specified in authorized or contemplated by this Agreement to be performed by such Shareholder (including the "voting of the Subject Shares in accordance with Sections 1(a) and 1(b)), and hereby acknowledges that the Shareholder Representative")Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. The Each such Shareholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest. Each such Shareholder hereby authorizes (and each such Permitted Transferee of such Shareholder shall be deemed to have authorized) the other parties have designated Goelethereto to disregard any notices or other action taken by such Shareholder pursuant to this Agreement, LLC as except for notices and actions taken by the initial Shareholder Representative. The Shareholder Representative may resign at any time, Purchaser is and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from action so taken or any notice given by the Majority Holders. The Shareholder Representative shall, at and is and will be entitled and authorized to give notices only to the expense Shareholder Representative for any notice contemplated by this Agreement to be given to any such Shareholder. A successor to the Shareholder Representative may be chosen by a majority in interest of the Shareholders; provided, be entitled that notice thereof is given by the new Shareholder Representative to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such PersonsPurchaser.
(cb) The Notwithstanding the generality of Section 6(a), each Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees hereby constitutes and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against appoints the Shareholder Representative, with full power of any nature whatsoeversubstitution, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating as the proxy pursuant to the acts or omissions provisions of Section 705 of the California Corporations Code and attorney of such Shareholder, and hereby authorizes and empowers the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of to represent, vote and otherwise act (by voting at any action or proceeding which finally adjudicates the liability meeting of the Shareholder Representative hereunder for his shareholders of the Company, by written consent in lieu thereof or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative otherwise) with respect to the Shareholders as Subject Shares owned or held by such Shareholder regarding the matters referred to the existence of a deficiency toward the payment of any such indemnification amountin Sections 1(a), each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d1(b) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive 1(c) until the termination of this Agreement.
(e) Notwithstanding anything herein , to the contrarysame extent and with the same effect as such Shareholder might or could do under applicable law, each rules and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Shareholder hereby acknowledges that the Company shall not have revokes any responsibility and all previous proxies or obligation whatsoever to any such Shareholder or to any other party powers of attorney granted with respect to any of the Subject Shares owned or arising out of any actions taken or any inaction held by such Shareholder regarding the Shareholder Representativematters referred to in Sections 1(a) and 1(b).
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The By the execution and delivery of this Agreement or any letter of transmittal, including counterparts thereof, each of the Shareholders agree to of the Company Group will irrevocably constitute and appoint one Person the Shareholder Representative as the true and lawful agent and attorney-in-fact of such Shareholder with full powers of substitution to act as their representativein the name, attorney in fact place and proxy stead of such Shareholder with respect to certain matters specified the performance on behalf of such Shareholder under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in this Agreement connection with any transaction contemplated hereunder, including the power to: (i) act for such Shareholder with respect to the "Indemnification Escrow Amount; (ii) amend, modify or waive any provision of the Transaction Documents in any manner; (iii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative"). The parties have designated Goelet, LLC as in the initial sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative. The ; (iv) act for such Shareholder with respect to all Purchase Price matters referred to herein; (v) incur any expenses, liquidate and withhold assets received on behalf of such Shareholder prior to their distribution to such Shareholder to the extent of any amount that the Shareholder Representative may resign at any timedeems necessary for payment of or as a reserve against expenses, and a pay such expenses or deposit the same in an interest-bearing bank account established for such purpose, with all such expenses reimbursed to the Shareholder Representative may be removed at any time by the vote out of Shareholders who collectively own more than 50% amounts received out of the Registrable Securities at Indemnification Escrow Amount, or if no amounts are received, by reimbursement from the Shareholders in accordance with their pro rata percentage ownership; (vi) receive all notices, communications and deliveries hereunder on behalf of such time Shareholder; (vii) do or refrain from doing any further act or deed on behalf of such Shareholder that the "Majority Holders"). In Shareholder Representative deems necessary or appropriate, in the event of the death, resignation or removal sole discretion of the Shareholder Representative, relating to the subject matter hereof as fully and completely as such Shareholder could do if personally present and acting and as though any reference to such Shareholder herein was a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned reference to the Shareholder Representative under this AgreementRepresentative; or (viii) direct, authorize or permit any third party paying agent, if applicable, to take any of the foregoing actions; provided, however, that the Shareholder Representative will shall have no obligation to act on behalf of the Shareholdersact, except as expressly provided herein. .
(b) The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part appointment of the Shareholder Representative) Representative shall be entitled deemed coupled with an interest and shall be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholder Representative as the act of each Shareholder in all matters referred to conclusively rely on the opinions and advice of such Personsherein.
(c) The In the event the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement Person appointed by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 holding a majority of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against percentages held by all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder RepresentativeShareholders.
(d) All The Reserve Amount shall be used by the Shareholder Representative to satisfy the obligations of the indemnities, immunities Shareholder Representative set forth herein and powers granted to otherwise permit the Shareholder Representative to perform its obligations set forth herein. As soon as practicable after the date on which the final obligation of the Shareholder Representative under this Agreement has been discharged, the Shareholder Representative shall survive pay the termination of this Escrow Agent any amounts remaining in the Reserve Amount to be paid by Escrow Agent in accordance with the Escrow Agreement.
(e) Notwithstanding anything herein In furtherance of its role, the Shareholder Representative shall be entitled to incur such reasonable costs and expenses as the contraryShareholder Representative may deem appropriate under the circumstances, each Shareholder hereby acknowledges that which expenses may include hiring attorneys, accountants, appraisers and other professional advisors. Such expenses shall be reimbursed from the Company shall not have any responsibility or obligation whatsoever Reserve Amount from time to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction time upon demand by the Shareholder Representative.
(f) Nothing in the Transaction Documents is intended, and nothing in the Transaction Documents shall be interpreted as, imposing upon the Shareholder Representative, solely in its capacity as the agent and attorney-in fact for the Shareholders, any personal liability, personal economic obligation or personal guarantee in favor of any party to this Agreement or any third party. The Company Shareholder Representative shall have no liability to the right Shareholders with respect to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by in its capacity as the Shareholder Representative. The Shareholders hereby agree to defend, indemnify, and hold the Shareholder Representative pursuant to harmless from and against any and all liability, damages, costs, and expenses, including attorneys’ fees and court costs, that the Shareholder Representative may incur as a result of this Agreement and any instrumentor in the course of performance of its services hereunder, agreement other than for such liability as the Shareholder Representative may incur because of his (or document relating heretohis representatives) gross negligence, all of which actions fraud or omissions shall be legally binding upon all the Shareholders.intentional misconduct
Appears in 1 contract
Samples: Stock Purchase Agreement (Security National Financial Corp)
Shareholder Representative. (a) The By virtue of the adoption of this Agreement, and without any further action of any of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients, Phantom Award Holders or the Company, Gulliver Xxxxxxx is hereby irrevocably nominated, constituted and appointed as the exclusive representative, agent and true and lawful attorney-in-fact of each of the Shareholders, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders (the “Shareholder Representative”), with full power of substitution by the Shareholders agree or, following the Closing, by the Founders (and, if so substituted, the Shareholder Representative and/or the Founders will promptly notify Parent of such substitution) to appoint one Person act in the name, place and stead of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders with respect to this Agreement, as the same may be from time to time amended, and with respect to the transactions contemplated hereby; to act as their “purchaser representative” (as defined in Rule 501(i) of Regulation D under the Securities Act) for any Shareholder, attorney in fact including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient or Phantom Award Holder that is not an Accredited Investor; and proxy with respect to certain matters specified in do or refrain from doing all such acts and things, and to execute all such documents (including any amendments to this Agreement and any requests, notices, waivers and consents), in each case as the Shareholder Representative shall deem necessary, appropriate or desirable in connection with this Agreement, any agreements contemplated by this Agreement or any of the transactions contemplated hereby or thereby; and to enforce and protect (or refrain from enforcing) the "rights and interests of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders (including by asserting or defending any claim, consenting to, compromising or settling any such claim or conducting any negotiation regarding any such claim) arising out of or under or in any manner relating to this Agreement, any agreements contemplated by this Agreement or any of the transactions contemplated hereby or thereby.
(b) All decisions, actions (or failures to take an action or omissions of an action), notices, instructions and communications of the Shareholder Representative"Representative shall be final, binding and conclusive on the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders and may be relied upon by Parent, Merger Sub and their Affiliates as the decisions, actions (or failures to take an action or omissions of an action), notices, instructions and communications of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders. The parties have designated GoeletShareholder Representative and each Shareholder, LLC as including, for the initial avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder shall be entitled to disregard any notices or communications given or made by any Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder not given or made through the Shareholder Representative. The Shareholder Representative may resign at shall not be liable to any timeof the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and a Phantom Award Holders for any act done or omitted by the Shareholder Representative may be removed at in good faith pursuant to this Agreement or any time agreement ancillary hereto or any mistake of fact or Law unless caused by the vote Shareholder Representative’s knowing and material willful misconduct in the performance of Shareholders who collectively own more than 50% its duties under this Agreement. The Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders will indemnify, defend and hold harmless the Registrable Securities at Shareholder 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 Losses”) arising out of or in connection with the Shareholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such time (the "Majority Holders"). In Representative Loss is suffered or incurred; provided, that in the event of that any such Representative Loss is finally adjudicated to have been directly caused by the death, resignation or removal knowing and material willful misconduct of the Shareholder Representative, a new the Shareholder Representative shall be appointed by a vote will reimburse the Shareholders, including, for the avoidance of Majority doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders the amount of such appointment indemnified Representative Loss to become effective upon the written acceptance thereof extent attributable to such knowing and material willful misconduct. If not paid directly to the Shareholder Representative by the new Shareholder Representative. Any failure Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders, any such Representative Losses may be recovered by the Majority Holders to appoint a new Shareholder Representative upon from the deathShareholder Representative Expense Amount; provided, that while this Section 9.16(b) allows the Shareholder Representative to be paid from the aforementioned source, this does not relieve the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance any of his own funds on behalf of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section 9.16. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein . In taking any action or refraining from taking any action whatsoever the Shareholder Representative shall be protected in relying upon any notice, paper or other document reasonably believed by it to be genuine, or upon any evidence reasonably deemed by it to be sufficient. The Shareholder Representative may consult with counsel in connection with its duties and shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the contraryadvice of counsel. Parent, each Shareholder hereby acknowledges that the Company Merger Sub and their respective Affiliates shall not have be liable in any responsibility manner whatsoever for any action taken or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any not taken in reliance upon the actions taken or any inaction not taken or communications or writings given or executed by the Shareholder Representative.
(fc) The Company Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders will not receive any interest or earnings on the Shareholder Representative Expense Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of principal of the Shareholder Representative Expense Amount other than as a result of its knowing and material willful misconduct. The Shareholder 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. The Shareholder Representative Expense Amount shall have be retained by the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken Shareholder Representative for such time as the Shareholder Representative shall determine in his sole discretion. Any amounts from the Shareholder Representative Expense Amount that remain unused through the date determined by the Shareholder Representative pursuant to the preceding sentence shall be distributed to the Shareholders in accordance with their ownership interests in the Company and entitlement to consideration in accordance with the terms of this Agreement. For tax purposes, the Shareholder Representative Expense Amount will be treated as having been received and voluntarily set aside by the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders at the time of Closing.
(d) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder and (ii) shall survive the consummation of the transactions contemplated hereby.
(e) Any Action against Parent or any of its subsidiaries that is brought by or on behalf of a Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient or Phantom Award Holder, either individually or as a group, with respect to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall the transactions contemplated by this Agreement may be legally binding upon all brought only by the ShareholdersShareholder Representative and/or either Founder.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement and approval of the Mergers by the Shareholders, each of the Equityholders shall be deemed to have agreed to appoint one Person Xxxxxxxx Xxxxxx, an individual, as its, his or her agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Indemnifying Parties to act as their representativegive and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Holdback Fund, attorney to authorize payment to any Indemnified Party from the Holdback Fund in fact satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement (or the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timeTransactions, and a Shareholder Representative may be removed at any time by to take all other actions that are either (i) necessary or appropriate in the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal judgment of the Shareholder Representative shall not have for the effect accomplishment of releasing the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from any liability under this Agreement.
time to time upon not less than thirty (b30) The Shareholder Representative shall have such powers and authority as are necessary days prior written notice to carry out the functions assigned to the Shareholder Representative under this AgreementParent; provided, however, that the Shareholder Representative will have no obligation to act on behalf may not be removed unless holders of a two- thirds interest of the ShareholdersHoldback Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, except as expressly provided herein. The in the event of a resignation of the Shareholder Representative will at all times or other vacancy in the position of Shareholder Representative, such vacancy may be entitled to rely on any directions received from filled by the Majority Holders. The Shareholder Representative shall, at the expense holders of a majority in interest of the Shareholders, Holdback Fund. No bond shall be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part required of the Shareholder Representative. Notices or communications to or from the Shareholder Representative after the Closing shall constitute notice to or from the Indemnifying Parties.
(b) A decision, act, consent or instruction of the Shareholder Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be entitled final, binding and conclusive upon the Indemnifying Parties, and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to conclusively rely on any person for any acts done by Parent in accordance with such decision, act, consent or instruction of the opinions and advice of such PersonsShareholder Representative.
(c) The Shareholder Representative shall not be entitled to liable for any fee, commission act done or other compensation for the performance of its services hereunder, but omitted hereunder as Shareholder Representative while acting in good faith. The Indemnifying Parties shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as indemnify the Shareholder Representative pursuant to Section 4.2 hereof. 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 hold the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to harmless against any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against and all losses, liabilities, damages, liabilities, claims, obligationspenalties, fines, forfeitures, actions, fees, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, expenses arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions administration of the Shareholder Representative’s duties hereunder or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative hereunder. The foregoing indemnification shall not apply (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event of that any action such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or proceeding which finally adjudicates the liability willful misconduct of the Shareholder Representative, the Shareholder Representative hereunder for his or her will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver If not paid directly to the Shareholder Representative full payment by the Indemnifying Parties, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Holdback Fund at such time as remaining amounts would otherwise then be distributable to the Indemnifying Parties (which, for the avoidance of his doubt, shall not include any amounts that remain held in the Holdback Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Shareholder Representative to be paid from the Expense Fund and the Holdback Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or her ratable share incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the amount Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. The Shareholder Representative shall be entitled to use the Expense Fund in order to fund all Shareholder Representative Expenses. Following the termination of the Holdback Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses hereunder, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses incurred in excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Holdback Fund, prior to any distribution to the Indemnifying Parties, and prior to any such deficiencydistribution, shall deliver to Parent a certificate setting forth the Shareholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Shareholder Representative to be paid from the Holdback Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Shareholder Representative Expenses as they are incurred, to the extent the Expense Fund is insufficient or unavailable. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representativeBy approving the Merger at a special meeting of shareholders or by written consent of the shareholders, attorney in fact each Shareholder shall have irrevocably authorized and proxy with respect to certain matters specified in this Agreement appointed the chief executive officer of the Surviving Corporation or if there is no chief executive officer the next highest ranking officer (the "Shareholder Representative"). The parties have designated Goelet, LLC with full power of substitution and resubstitution, as such Shareholder's representative and true and lawful attorney-in-fact and agent to act in such Shareholder's name, place and stead as contemplated by Article 9 and to execute in the initial name and on behalf of such Shareholder Representative. The the Interwest Escrow Agreement and any other agreement, certificate, instrument or document to be delivered by such Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by in connection with the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Interwest Escrow Agreement.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder or under the Interwest Escrow Agreement as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Interwest Escrow Shares were contributed to the Interwest Escrow shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder and under the indemnitiesInterwest Escrow Agreement, immunities including the reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant to this Agreement shall constitute a decision of the Shareholders and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all the Shareholders; and the Interwest Escrow Agent and the Indemnified Parties (as defined herein) may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Interwest Escrow Agent and the Indemnified Parties are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Innerspace Corp)
Shareholder Representative. The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, Xxxxx Xxxxxxxx (a) The Shareholders agree to appoint one Person to act together with his permitted respective successors, collectively, the “Shareholder Representative”), as their representative, attorney in fact true and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timelawful agent and attorney-in-fact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative by his execution of this Agreement shall be appointed by a vote of Majority Holdersdeemed to have accepted such appointment, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from enter into any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement transactions contemplated by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 powers, authority and discretion conferred upon on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of any claim, action or proceeding for which any Company Shareholder or TPI may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or (ii) in the absence of his own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any actions taken by the Shareholder Representative in his capacity as such, the Shareholder Representative shall incur have no responsibility whatsoever liability to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder TPI, or any such other agreement, instrument or document, excepting only responsibility of its affiliates except for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata claims based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction fraud by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tradeshow Products, Inc.)
Shareholder Representative. (a) The As between the Shareholders agree to appoint one Person to act as their representativeand the Shareholder Representative, attorney the Shareholders shall severally indemnify the Shareholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in fact and proxy connection with the acceptance or administration of his duties hereunder or under the Merger Agreement. A decision, act, consent or instruction of the Shareholder Representative in respect to certain matters specified in of any action under this Agreement (or the "Merger Agreement shall constitute a decision of all Shareholders and shall be final, binding and conclusive upon each such Shareholder Representative")and the Escrow Agent and Parent may rely upon any decision, act, consent or instruction of the Shareholder Representative hereunder or under the Escrow Agreement as being the decision, act, consent or instruction of each and every such Shareholder and shall be entitled to take action consented to by a majority of the Shareholders. The parties have designated GoeletEscrow Agent and Parent are hereby relieved from any liability to any Person (including any Shareholder) for any acts done by them in accordance with such decision, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timeact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation consent or removal instruction of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have not be responsible for any of the agreements referred to or described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby. The Shareholder Representative shall be obligated only for the performance of such powers and authority duties as are necessary specifically set forth herein (which duties are ministerial and not fiduciary) and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to carry out be genuine and to have been signed or presented by the functions assigned proper party or parties. The Shareholder Representative shall not be liable for forgeries or false presentations. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative except for gross negligence or willful misconduct. The Shareholder Representative shall in no case or event be liable for any representations or warranties of Company, Parent, the Shareholder Representative, the Shareholders or Merger Sub. Any act done or omitted pursuant to the advice or opinion of counsel, shall be conclusive evidence of the good faith of the Shareholder Representative under this AgreementRepresentative; provided, however, that and the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holdersadvice of such counsel. The Shareholder Representative shall, at the shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they or liability unless it shall deem necessary in connection have been furnished with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Personsacceptable indemnification.
(c) The Shareholder Representative shall not be entitled is hereby expressly authorized to disregard any feeand all warnings given by any of the parties hereto or by any other person, commission excepting only orders or other compensation for the performance process of its services hereundercourts of law or arbitration as provided herein, but shall be entitled and is hereby expressly authorized to the reimbursement by the Shareholders comply with and obey orders, judgments or decrees of all his, her any court or its fees and expenses incurred as rulings of any arbitrators. In case the Shareholder Representative pursuant to Section 4.2 hereof. In connection obeys or complies with this Agreementany such order, and judgment or decree of any instrument, agreement court or document relating hereto or thereto, and in exercising or failing to exercise all or such ruling of any of the powers conferred upon the Shareholder Representative hereunderarbitrator, the Shareholder Representative shall incur no responsibility whatsoever not be liable to any Shareholder of the parties hereto or to any other person by reason of any error in judgment or other act or omission performed or omitted hereunder or such compliance, notwithstanding any such other agreementorder, instrument judgment, decree or documentarbitrators' ruling being subsequently reversed, excepting only responsibility for any act modified, annulled, set aside, vacated or failure found to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativehave been entered without jurisdiction.
(d) All The Shareholder Representative shall not be liable in any respect on account of the indemnitiesidentity, immunities and powers granted authority or rights of the parties executing or delivering or purporting to execute or deliver the Shareholder Representative under this Escrow Agreement shall survive the termination of this Agreementor any documents or papers deposited or called for thereunder.
(e) Notwithstanding anything herein to the contrary, each The Shareholder hereby acknowledges that the Company Representative shall not have be liable for any responsibility change in, modification, recission or obligation whatsoever to clarification of law adversely affecting any such Shareholder or to rights under any other party statute of limitation with respect to or arising out of any actions taken the Escrow Agreement or any inaction by documents deposited with the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders For purposes of this Agreement and the Escrow Agreement, the Company hereby appoints, and each Company Shareholder and Optionholder shall, without any further action on the part of any such Company Shareholder or Optionholder, be deemed (by virtue of the adoption and approval of this Agreement and approval of the Merger and/or acceptance of any consideration pursuant to this Agreement) to have consented to the appointment of Shareholder Representative Services LLC as the attorney‑in‑fact and agent for and on behalf of each such Company Shareholder and Optionholder, and the taking by the Shareholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholder Representative under or contemplated by this Agreement and the other documents contemplated hereby, including the exercise of the power to (i) execute this Agreement, the Escrow Agreement and other agreements, documents and certificates pursuant to such agreements, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Parent of all or any portion of the Escrow Fund from the Escrow Account, in satisfaction of indemnification or other claims contemplated by this Agreement or as provided in the Escrow Agreement, (iii) agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of and comply with orders of courts and awards of arbitrators with respect to certain matters specified in such indemnification or other claims, (iv) resolve any indemnification or other claims, (v) receive and forward notices and communications pursuant to this Agreement and the Escrow Agreement, and (vi) take all actions necessary in the "judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Escrow Agreement and any other agreements, documents and certificates thereto. Any and all such actions taken by the Shareholder Representative on behalf of the Company Shareholders and Optionholders (or former Company Shareholders and Optionholders) shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Company Shareholders and Optionholders. The Company Shareholders and Optionholders shall cooperate with the Shareholder Representative and any accountants, attorneys or other agents whom the Shareholder Representative may retain to assist in carrying out Shareholder Representative")’s duties hereunder. Shareholder Representative Services LLC hereby accepts its appointment as the Shareholder Representative. The parties have designated Goelet, LLC Shareholder Representative is authorized by each Company Shareholder and Optionholder by virtue of the adoption and approval of this Agreement and approval of the Merger to act on its behalf as required hereunder and under the initial Shareholder RepresentativeEscrow Agreement. The Shareholder Representative may resign at any time, with thirty (30) days prior written notice to Parent and the Escrow Agent, upon the terms set forth in the engagement agreement between the Company and the Shareholder Representative. At any time during the term of the Escrow Agreement, Company Shareholders holding (or after the Effective Time, former Company Shareholders who held immediately prior to the Effective Time) a majority of the votes entitled to be cast by the Junior Common Shares at the Shareholders’ Meeting can appoint a new Shareholder Representative (after reasonably consulting with Parent regarding the proposed new Shareholder Representative) by sending notice and a copy of the duly executed written consent appointing such new Shareholder Representative may to Parent and the Escrow Agent. Such appointment will be removed at effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent. The parties acknowledge that the Shareholder Representative’s obligations under this Article VIII are solely as a representative of the Company Shareholders and Optionholders under this Article VIII.
(b) All decisions, actions, consents and instructions of the Shareholder Representative shall be final and binding upon all the Company Shareholders and Optionholders and no Company Shareholder or Optionholder shall have any time right to object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Parent shall be able to rely conclusively on the instructions and decisions of the Shareholder Representative and shall be required to only file and negotiate any claims or disputes with the Shareholder Representative and not with each Company Shareholder and Optionholder. The Shareholder Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Shareholder or Optionholder, except in respect of amounts actually received on behalf of such Company Shareholder or Optionholder. The Shareholder Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. The Shareholder Representative shall not have any liability to any Company Shareholder or Optionholder in connection with the Shareholder Representative’s services pursuant to this Agreement while acting in good faith, and any act done or omitted pursuant to the advice of legal counsel, public accountants or other independent experts reasonably relied upon in good faith by the vote Shareholder Representative shall be conclusive evidence of such good faith. The Company Shareholders who collectively own more than 50% and Optionholders shall severally (based on such Company Shareholder’s or Optionholder’s Pro Rata Portion) indemnify the Shareholder Representative and hold it harmless against any loss, liability, damage, claim, penalty, fine, forfeiture, action, fee cost or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholder Representative Expenses”) arising out of or in connection with the Registrable Securities at acceptance or administration of its duties hereunder, in each case as such time (the "Majority Holders"). In Shareholder Representative Expense is suffered or incurred; provided, that in the event of that any such Shareholder Representative Expense is finally adjudicated to have been directly caused by the death, resignation gross negligence or removal bad faith of the Shareholder Representative, a new the Shareholder Representative shall be appointed by a vote will reimburse the Company Shareholders and Optionholders the amount of Majority Holders, such appointment indemnified Shareholder Representative Expense to become effective upon the written acceptance thereof extent attributable to such gross negligence or bad faith. If not paid directly to the Shareholder Representative by the new Company Shareholders and Optionholders, any such Shareholder Representative. Any failure Representative Expenses may be recovered by the Majority Holders to appoint a new Shareholder Representative upon from (i) the deathfunds in the Shareholder Representative Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders and Optionholders; provided, that in no event may any Shareholder Representative Expenses be recovered by the Shareholder Representative from any portion of the Escrow Fund that has not been disbursed by the Escrow Agent for distribution to the Company Shareholders and Optionholders in accordance with the Escrow Agreement; provided, further, that while this section allows the Shareholder Representative to be paid from Shareholder Representative Fund and the Escrow Fund, this does not relieve the Company Shareholders and Optionholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Company Shareholders and Optionholders or otherwise. The Company Shareholders and Optionholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative shall not have or the effect termination of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled hereby represents and warrants to any feeParent that (i) it is a limited liability company validly existing and in good standing under the Laws of the State of Colorado, commission or other compensation for (ii) it has all requisite limited liability company power and authority to execute and deliver this Agreement and the performance Escrow Agreement and to perform its obligations hereunder and thereunder, (iii) the execution and delivery of its services hereunderthis Agreement by it has been, but shall be entitled to and the reimbursement execution and delivery of the Escrow Agreement by it at Closing will be, duly authorized by all necessary limited liability company action, (iv) this Agreement has been (and upon the Shareholder Representative’s execution thereof the Escrow Agreement will be) duly executed and delivered by it, and assuming the due authorization, execution and delivery hereof by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and any instrument, agreement or document relating other parties hereto or thereto, constitutes (or will constitute once executed) the legal, valid and in exercising or failing to exercise all or any binding obligations of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, enforceable against it in accordance with such Shareholder's percentage interest. In no event shall the Company their terms, except as enforcement hereof may be responsible for any reimbursement limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect similar Laws relating to or arising out affecting the enforcement of any actions taken creditors’ rights generally, the laws of agency, and legal principles of general applicability governing the availability of equitable remedies (whether considered in a proceeding in equity or any inaction by the Shareholder Representativeat law or under applicable legal codes).
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree Pursuant to appoint one Person to act the Shareholder Representative agreement, in the form attached hereto as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement Exhibit 9.1(a) (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The “Shareholder Representative may resign at any timeAgreement”), and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote named as the agent and representative of Majority Holdersall of the Company Shareholders, including without limitation, for purposes of receiving on their behalf all notices under this Agreement, the Escrow Agreement and the Paying Agent Agreement, issuing on their behalf such appointment to become effective upon notices under this Agreement, the written acceptance thereof by Escrow Agreement and the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the deathPaying Agent Agreement, resignation or removal of in each case as the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability determine in its sole discretion to issue, and performing such other administrative and other functions under this Agreement, the Escrow Agreement and the Paying Agent Agreement, in each case as may become necessary or desirable.
(b) The Shareholder Representative shall have such powers full power and authority to act for and on behalf of the Company Shareholders and their respective heirs, successors and assigns in regard to their rights and obligations under this Agreement, the Escrow Agreement and the Paying Agent Agreement. Without limiting the generality of the foregoing, the Shareholder Representative is authorized on behalf of the Company Shareholders to: (i) administer the Post-Closing NWC Adjustment process under Section 2.11; (ii) resolve all claims for indemnification under Article VIII of this Agreement, the Escrow Agreement and the Paying Agent Agreement; (iii) retain counsel of its choosing, experts and other professionals as are may be necessary or desirable to carry out assist in any such matters; and (iv) give such notices to the functions assigned Escrow Agent under the Escrow Agreement or to the Paying Agent under the Paying Agent Agreement, in each case as the Shareholder Representative, in its sole and absolute discretion, may determine to be necessary or appropriate. The Shareholder Representative shall have no right to act as agent for service of process for any one of the Company Shareholders, except that any notice delivered to the Shareholder Representative under this from the Purchaser or the Escrow Agent with respect to the Escrow Agreement; provided, howeveror from the Paying Agent with respect to Paying Agent Agreement, that shall be deemed notice to all Company Shareholders with respect thereto and any notice delivered to the Shareholder Representative will have no obligation with respect to act on behalf of any claim under Article VIII and any other matter under this Agreement after the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) Closing shall be entitled deemed notice to conclusively rely on the opinions and advice of such Personsall Company Shareholders with respect thereto.
(c) The Purchaser shall be named as a third party beneficiary in the Shareholder Representative Agreement. Neither the removal of a then acting Shareholder Representative nor such appointment of a successor Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance effective until notice of its services hereunder, but shall be entitled such act has been provided to the reimbursement Purchaser and the delivery to the Purchaser and Escrow Agent of executed counterparts of a writing signed by sufficient number of Company Shareholders necessary to authorize such removal and appointment, together with an acknowledgment signed by the Shareholders of all his, her or its fees and expenses incurred as the successor Shareholder Representative pursuant appointed in such writing that it, he or she accepts the responsibility of successor Shareholder Representative and agrees to Section 4.2 hereof. In connection with this Agreement, perform and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise be bound by all or any of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever provisions of this Agreement applicable to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, with a copy of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating such acknowledgement being promptly provided to the acts or omissions Purchaser. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative hereunder. The foregoing indemnification shall not apply Representative, and the term “Shareholder Representative” as used herein, in the event of Escrow Agreement and the Paying Agent Agreement shall be deemed to include any action interim or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the successor Shareholder Representative.
(d) All of The Purchaser will at all times without any further act or inquiry have the indemnitiesright to rely on any act, immunities and powers granted to decision, consent or instruction of, or instrument or other writing executed by, the Shareholder Representative under as the final and binding act of all of the Company Shareholders, and by approval of the Merger the Company Shareholders waive any claim arising out of, or right to object to, any action so taken by the Purchaser or any of its Representatives or Affiliates. It is understood and agreed by each of the parties hereto that nothing in this Agreement shall survive be construed or deemed to expand or create any right on the termination part of a Company Shareholder, with respect to the Purchaser or any of its Affiliates, or any obligation on the part of the Purchaser, or any of its Affiliates, to any Company Shareholder not otherwise expressly set forth in clear and unambiguous terms in this AgreementAgreement (to the extent that there may be any such provisions herein).
(e) Notwithstanding anything herein to the contraryforegoing provisions of this Section 9.1, each the Shareholder hereby acknowledges that the Company Representative shall not have any responsibility power or obligation whatsoever authority to act for or on behalf of any such Company Shareholder or to any other party its heirs, successors or assigns, with respect to or arising out of any actions taken or any inaction by the claim that a Company Shareholder, in its capacity as such, committed fraud (each, an “Individual Shareholder Representative.
(f) Claim”). The Company Shareholder Representative shall have the no right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted act as agent for service of process for any Company Shareholder with respect to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersan Individual Stockholder Claim.
Appears in 1 contract
Samples: Merger Agreement (On Assignment Inc)
Shareholder Representative. (a) The By virtue of the approval of the Merger and this Agreement by the Shareholders, each of the Shareholders agree shall be deemed to have agreed to appoint one Person Jxxx XxXxxxxx as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to act as their representativegive and receive notices and communications, attorney to authorize payment to any Indemnified Party from the Escrow Fund in fact satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against the Escrow Fund and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement (Agreement. Such agency may be changed by the "Shareholder Representative"). The parties have designated GoeletShareholders from time to time upon not less than 30 days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any time, not be removed unless holders of a two-thirds (2/3rds) interest of the Escrow Fund agree to such removal and a to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative. A decision, investigationact, challenge, action consent or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in constitute a decision of the event of Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any action such decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder for his as being the decision, act, consent or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share instruction of the amount of such deficiency, Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Altiris Inc)
Shareholder Representative. (a) The By virtue of the approval of the Merger and this Agreement by the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint Shasta Ventures II, L.P. as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to give and receive notices and communications, to agree to appoint one Person the adjustment (if any) of the Aggregate Consideration Amount pursuant to act as their representativethe terms of the Article VIII, attorney to authorize deductions from the Escrow Fund and a proportionate forfeiture of the Founder’s Holdback Shares pursuant to the Stock Consideration Agreements, in fact satisfaction of claims by any Indemnified Party, to object to the foregoing adjustments or payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party, any dispute between any Indemnified Party and any such Shareholder, any dispute relating to the Company Assumed Liabilities Report, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (1) necessary or appropriate in the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing, or (2) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any timenot be removed unless holders of a two-thirds interest of the Total Escrow Amount agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, and a vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Total Escrow Amount. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary to carry out in the functions assigned to exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Following the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, investigation, challenge, action or proceeding or in connection with the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund (and the Founders agree to pay the Shareholder Representative their Pro Rata Portion of such amount) prior to any appeal thereof, relating distribution to the acts Shareholders, and prior to any such distribution, shall deliver to Parent and the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred and the amount in cash to be distributed as satisfaction of such expenses. The Escrow Agent shall be entitled to rely upon such certificate and shall have no duty to investigate or omissions confirm its accuracy. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.4 and Section 9.5 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in as being the event of any action decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder Shareholders. Parent, Sub and Payment Agent is hereby relieved from any liability to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Shanda Games LTD)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act In the event the Shareholder Representative shall die or resign or otherwise terminate his status as their representativesuch, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC his successor shall be Bernxxx X. Xxxxxx xx such other person as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a appoint. If the successor Shareholder Representative may shall die or resign or otherwise terminate his status as such, his successor shall be removed at any time person appointed by such successor Shareholder Representative or, in the case of his failure to appoint a successor after a vacancy has been created, elected by the vote or written consent of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Shareholders. In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal All decisions of the Shareholder Representative shall not have be binding upon the effect of releasing Shareholders. The Shareholder Representative shall keep the Shareholders from any liability under this Agreementreasonably informed of his or her material decisions.
(b) The Shareholder Representative shall have such powers and authority as are is authorized to take any action deemed by him appropriate or necessary to carry out the functions assigned provisions of, and to determine the rights of the Shareholders under this Agreement. The Shareholder Representative shall serve as the agent of the Shareholders for all purposes related to this Agreement, including without limitation service of process upon the Shareholders. By execution of this Agreement, the Shareholder Representative accepts and agrees to diligently discharge the duties and responsibilities of the Shareholder Representative set forth in this Agreement without compensation for his services hereunder. The authorization and designation of the Shareholder Representative under this Agreement; provided, however, that Section 7(b) shall be binding upon the Shareholder Representative will have no obligation to act on behalf successors and assigns of the Shareholders, except as expressly provided hereineach Shareholder. The Shareholder Representative will at all times Buyer and the Escrow Agent shall be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, upon such authorization and designation and shall be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary fully protected in connection dealing with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) , and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be entitled to conclusively rely on the opinions and advice of such PersonsShareholder Representative.
(c) The Shareholder Representative (i) shall not be entitled liable to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of Shareholders for any error in judgment of judgment, or other act or omission performed action taken or omitted hereunder in good faith, or any such other agreement, instrument mistake of fact or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for law unless caused by his or her own gross negligence or willful misconduct. In , (ii) shall be entitled to treat as genuine any letter or other document furnished to him by the event Buyer, the Shareholders or the Escrow Agent and believed by him to be genuine and to have been signed and presented by the proper party or parties and (iii) shall be reimbursed from any portions of any indemnification hereunder, upon written notice from Shareholder Representative the Escrow Fund otherwise immediately deliverable to the Shareholders as to under the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections for counsel fees and other actions taken or omitted to be taken out-of-pocket expenses incurred by the Shareholder Representative pursuant to in connection with this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersAgreement.
Appears in 1 contract
Samples: Escrow Agreement (Blais John F Jr)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act hereby designate Cxxxx Lxxx Xxx as their representative, attorney in fact the sole and proxy exclusive representative of the Shareholders (the “Shareholder Representative”) from and after the date hereof with respect to certain all matters specified in arising under this Agreement (with full powers of substitution to act in the "Shareholder Representative"). The parties have designated Goeletname, LLC place and stead of the Shareholders with respect to the performance on behalf of the Shareholders under the terms and provisions of this Agreement, as the initial Shareholder Representative. The Shareholder Representative same may resign at any timebe from time to time amended, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at to do or refrain from doing all such time (the "Majority Holders"). In the event of the deathfurther acts and things, resignation or removal of the Shareholder Representativeand to execute all such documents, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of as the Shareholder Representative shall not have deem necessary or appropriate in connection with any of the effect of releasing the Shareholders from any liability under transactions contemplated by this Agreement.
(b) The appointment of the Shareholder Representative shall have such powers be deemed coupled with an interest and authority as are necessary to carry out the functions assigned to shall be irrevocable, and any other Person (including IGPAC) may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative under as the acts of the Shareholders in all matters referred to in this Agreement; provided. The Shareholders, howeverby execution of this Agreement, hereby ratify and confirm all that the Shareholder Representative will shall do or cause to be done by virtue of the Shareholder Representative’s appointment as attorney-in-fact and agent of the Shareholders and, as such, shall have no obligation full power and authority, among other things, to act enter into any amendment of this Agreement (or waive any rights or obligations hereunder) in the name and on behalf of Shareholders as the Shareholders, except as expressly provided hereinShareholder Representative. The Shareholder Representative will at shall act for the Shareholders on all times be entitled to rely on any directions received from of the Majority Holders. The matters set forth in this Agreement in such manner as the Shareholder Representative shall, at believes to be in the expense best interest of the ShareholdersShareholders as a whole, but the Shareholder Representative shall not be entitled responsible to engage any Shareholder for any loss or damage any Shareholder may suffer by reason of the performance by the Shareholder Representative of such counselShareholder Representative’s duties under this Agreement, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (than loss or damage arising from fraud, willful misconduct or bad faith in the absence performance of bad faith on the part of the such Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons’s duties under this Agreement.
(c) The Shareholder Representative shall not be entitled is authorized to act on behalf of the Shareholders notwithstanding any feedispute or disagreement among the Shareholders, commission or other compensation for the performance of its services hereunder, but and any Person shall be entitled to the reimbursement rely on any and all action taken by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrarywithout liability to, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to inquire of, the Shareholders. If Cxxxx Lxxx Xxx ceases to function in such capacity for any such Shareholder reason whatsoever, or is unable, due to any other party with respect incapacity or otherwise, to or arising out of any actions taken or any inaction by serve as the Shareholder Representative.
(f) The Company , then the Shareholders shall select a successor Shareholder Representative reasonably satisfactory to IGPAC; provided, however, that IGPAC shall be provided at least ten days’ prior written notice of the selection of a successor; provided further however, that if for any reason no successor has been appointed within ten days, then any of the Shareholders shall have the right to rely conclusively upon petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all instructions, requests, consents, elections and other actions taken or omitted of the provisions of this Agreement applicable to be taken by the Shareholder Representative. Each successor Shareholder Representative pursuant to shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative and any instrument, agreement or document relating hereto, all of which actions or omissions the term “Shareholder Representative” as used herein shall be legally binding upon all the Shareholdersdeemed to include any successor Shareholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Israel Growth Partners Acquisition Corp.)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act Except as their representativeprovided in Section 8.3(b), attorney in fact and proxy with respect to certain matters specified in each Shareholder by executing this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC hereby irrevocably constitutes and appoints Xxx Xxxxx as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, with full power and authority to act in the name of and for and on behalf of such Shareholder with respect to all matters arising in connection with, or related to, this Agreement and the Escrow Agreement to which such Shareholder is a new party and the transactions contemplated hereby and thereby. Except as provided in Section 8.3(b), the Shareholder Representative shall be is hereby appointed (i) the agent and true and lawful attorney-in-fact of each Shareholder, with full power of substitution, and with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Shareholder in connection with all matters arising out of, resulting from, contemplated by a vote or related or incident to this Agreement and the Escrow Agreement, if applicable, and (ii) the agent for service of Majority Holdersprocess for each Shareholder, such appointment and the Shareholders hereby irrevocably consent to become effective upon the written acceptance thereof service of any and all process in any action or proceeding arising out of or relating to this Agreement by the new delivery of such process to the Shareholder Representative. Any failure by Without limiting the Majority Holders to appoint a new Shareholder Representative upon generality of the deathforegoing, resignation or removal the power of the Shareholder Representative shall not have include the effect power to represent each Shareholder with respect to all aspects of releasing this Agreement, which power shall include, without limitation, the power to (i) waive any and all conditions of this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith in any respect, (iii) bring, assert, defend, negotiate or settle any claims or actions pursuant to the terms hereof, (iv) retain legal counsel or accountants and be reimbursed by the Shareholders from for all fees, expenses and other charges of such legal counsel or accountants, (v) receive notices or other communications, (vi) deliver any liability under this Agreement.
notices, certificates or other documents required and (bvii) The Shareholder Representative shall have take all such powers other action and authority to do all such other things as are necessary to carry out the functions assigned to the Shareholder Representative under deems necessary, appropriate, desirable or advisable with respect to this Agreement or the Escrow Agreement; provided, however, that such authority shall not include the Shareholder Representative will have no obligation authority to act receive any payment to be made to the Shareholders pursuant to this Agreement or the Escrow Agreement, which the parties acknowledge and agree shall be made on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith a pro rata basis based on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement relative ownership by the Shareholders of all his, her or its fees and expenses incurred the Corporation’s Stock immediately prior to the Closing as the Shareholder Representative pursuant to Section 4.2 hereofset forth on Schedule 3.2. In connection with this Agreement, Xxxx 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company Xxxx Indemnitee shall have the absolute right and authority to rely conclusively upon all instructions, requests, consents, elections and other actions the acts taken or omitted to be taken by the Shareholder Representative on behalf of the Shareholders, and Xxxx and any Xxxx Indemnitee shall have no duty to inquire as to the acts and omissions of the Shareholder Representative. Each Shareholder hereby acknowledges and agrees that (i) all deliveries by Xxxx (other than any payment made in accordance with the proviso at the end of the immediately preceding sentence) shall be deemed deliveries to the Shareholders, (ii) Xxxx shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Shareholder Representative and any Shareholder and (iii) any disclosure made to the Shareholder Representative by or on behalf of Xxxx shall be deemed to be a disclosure made to each Shareholder. In the event such Shareholder Representative refuses to, or is no longer capable of, serving as the Shareholder Representative hereunder, a majority of the Shareholders shall promptly appoint a successor Shareholder Representative who shall be reasonably acceptable to Xxxx and shall thereafter be a successor Shareholder Representative hereunder, and the Shareholder Representative shall serve until such successor is duly appointed and qualified to act hereunder.
(b) Notwithstanding Section 8.3(a): (i) with the prior written consent of Xxxx, (A) any Shareholder may take any action with respect to any matter specified in such written consent and arising in connection with, or related to, this Agreement and the Escrow Agreement to which such Shareholder is a party and the transactions contemplated hereby and thereby and (B) the appointment of the Shareholder Representative as agent and attorney-in-fact for the purposes set forth in Section 8.3(a) shall be suspended to the extent (and only to the extent) and with respect to those matters (and only those matters) specified in such written consent; and (ii) the Xxxx Indemnitees may at any time with respect to any matter direct any instruction or request directly to any Shareholder in its capacity as such, and such instruction or request shall constitute the written consent of Xxxx with respect to such matter for purposes of Section 8.3(b)(i). Any written consent delivered pursuant to this Agreement Section 8.3(b) may be withdrawn at any time, and upon any instrumentsuch withdrawal the provisions of Section 8.3(a) shall apply fully as though no written consent had been delivered (subject to the Xxxx’x continued right to deliver a written consent pursuant to this Section 8.3(b), agreement or document relating hereto, all including with respect to any matter that was the subject of which actions or omissions shall be legally binding upon all the Shareholdersa previous written consent).
Appears in 1 contract
Shareholder Representative. (a) The Shareholders and the DolEx Class B Shareholders hereby agree to appoint one Person and acknowledge that the Shareholder Representative shall act as an agent of the Shareholders and the DolEx Class B Shareholders and is entitled with such powers as are delegated under this Agreement, which shall include the power (i) to act as their representativethe attorney-in-fact for each Shareholder or DolEx Class B Shareholder to execute the Escrow Agreement, attorney the Earnout Agreement, and any Company Ancillary Agreement, (ii) to give and receive notices and communications on behalf of the Shareholders and the DolEx Class B Shareholders under this Agreement, the Escrow Agreement, the Earnout Agreement, any Stock Pledge Agreement, and any Company Ancillary Agreement, (iii) to waive provisions of any such agreements, (iv) to update the Schedules to this Agreement and provide same to Parent, (v) to authorize delivery to the Parent Group Members of the funds or other property pursuant to the Escrow Agreement in fact satisfaction of claims by Parent Group Members, (vi) to object to any Claim Notice, (vii) to conduct, control and proxy cooperate with respect to certain matters specified the defense of the litigation described in this Agreement Article X herein, (the "Shareholder Representative"). The parties have designated Goeletviii) to agree to, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timenegotiate, enter into settlements and compromises of, and a Shareholder Representative may be removed at any time by demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and (ix) to take all actions necessary or appropriate in the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal judgment of the Shareholder Representative shall not have for the effect accomplishment of releasing the foregoing and to otherwise act on behalf of the Shareholders from any liability under and the DolEx Class B Shareholders with respect to this Agreement, the Escrow Agreement, the Earnout Agreement, any Stock Pledge Agreement and any Company Ancillary Agreement and the transactions contemplated hereby and thereby, each of which the Shareholders and the DolEx Class B Shareholders have received, reviewed and approved in their execution form.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to A decision, act, consent or instruction of the Shareholder Representative under this Agreement; providedin accordance with Section 12.13(a) shall constitute a decision of all Shareholders and all DolEx Class B Shareholders and shall be final, howeverbinding and conclusive upon each such Shareholder or DolEx Class B Shareholder, that and Parent may rely upon any decision, act, consent or instruction of the Shareholder Representative will have no obligation as being the decision, act, consent or instruction of each and every such Shareholder and DolEx Class B Shareholder. Each Parent Group Member is hereby relieved from any liability to act on behalf of the Shareholdersany Person for any acts done by them in accordance with such decision, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shallact, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part consent or instruction of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled liable to the reimbursement by Shareholders or the DolEx Class B Shareholders of all his, her for any act done or its fees and expenses incurred omitted as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreementwhile acting in good faith and in the exercise of reasonable judgment, 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed done or omitted hereunder pursuant to the written advice of counsel shall be conclusive evidence of such good faith.
(d) Neither Parent nor any Parent Group Member shall be responsible or any such other agreement, instrument or document, excepting only responsibility liable for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative’s capacity as such.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person Each Shareholder hereby irrevocably appoints Yao (the “Shareholder Representative”) as the agent for each such Shareholder with full power of attorney to act for and on behalf of such Shareholder in any capacity in connection with this Agreement and all other agreements, documents and instruments executed and delivered by any Shareholder, including the giving and receiving of all notices, reports, waivers and consents. Each Shareholder agrees to deliver this Agreement to the Shareholder Representative and hereby authorizes the Shareholder Representative to (a) amend or modify this Agreement on behalf of such Shareholder, (b) attend the Closing on behalf of a Shareholder, (c) execute, deliver and endorse any other agreements, documents or instruments required to be executed, delivered or endorsed on behalf of a Shareholder to consummate the transactions contemplated by this Agreement, (d) negotiate and settle any indemnification claim made by Buyer which may result in the further payment by a Shareholder as their representativean Indemnifying Party hereunder, attorney (e) receive each Shareholder’s allocable Pro Rata Share of the Purchase Price, which shall be allocated among and paid to the Shareholders by the Shareholder Representative, and (f) take all other actions for and on behalf of the Shareholders, whether before or after the Closing, that may be necessary or desirable in fact and proxy connection with the consummation of the contemplated transactions or in connection with any matters arising after the Closing relating to this Agreement, including with respect to certain matters specified the Escrow Agreement. All provisions hereunder requiring actions to be taken, consents to be given, requiring action to a Shareholder’s or the Shareholders’ satisfaction and the like, shall be deemed satisfied if such action is taken, such consent given or approval or similar step is taken or given by the Shareholder Representative on behalf of a Shareholder. Each Shareholder hereby designates and appoints Shareholder Representative to serve as agent to receive on such Shareholder’s behalf service of notices under this Agreement, as well as service of all process or other similar notices of suit in this Agreement any proceedings in any courts, such service or similar notice of suit being hereby acknowledged by a Shareholder to be effective and binding service or notice in every respect.
(the "b) The Shareholder Representative will not be liable for any act taken or omitted to be taken as Shareholder Representative"), except to the extent such actions are determined by a court of competent jurisdiction to have constituted actual fraud or intentionally wrongful misconduct. The parties have designated GoeletExcept in cases where a court of competent jurisdiction has made such a determination, LLC as the initial Shareholders shall severally but not jointly indemnify and hold harmless the Shareholder RepresentativeRepresentative from and against any and all claims against it. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% received a majority of the Registrable Securities at such time (Pro Rata Share of the "Majority Holders")Purchase Price. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall must be appointed by the vote or written consent of Shareholders who received a vote majority of Majority Holdersthe Pro Rata Share of the Purchase Price. Buyer and the Escrow Agent may rely upon any decision, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the deathact, resignation consent or removal instruction of the Shareholder Representative shall not have as being the effect decision, act, consent or instruction of releasing each of the Shareholders Shareholders. The Buyer and the Escrow Agent are hereby relieved from any liability under this Agreementto any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(bc) The Shareholder Representative Each Shareholder, severally and not jointly in accordance with his, her or its Pro Rata Share, shall have such powers indemnify, defend and authority as are necessary to carry out the functions assigned to hold harmless the Shareholder Representative under this Agreement; providedfrom and against any and all losses, howeverclaims, that the Shareholder Representative will have no obligation to act on behalf damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts counsel and other agents skilled professionals and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and seeking recovery from insurers), judgments, fines or amounts paid in settlement (in collectively, the absence of bad faith “Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of its duties hereunder. Such Representative Expenses may be recovered first, from the Expense Fund Amount (as defined below), second, from any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating distribution of the Escrow Amount otherwise distributable to the acts or omissions Shareholders at the time of distribution, and third, directly from the Shareholders. The Shareholders acknowledge that the Shareholder Representative hereunder. The foregoing indemnification shall not apply be required to expend or risk its own funds or otherwise incur any financial liability in the event exercise or performance of any action of its powers, rights, duties or proceeding which finally adjudicates privileges or pursuant to this Agreement or the liability of transactions contemplated herein. Furthermore, the Shareholder Representative hereunder shall not be required to take any action unless the Shareholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholder Representative against the costs, expenses and liabilities which may be incurred by the Shareholder Representative in performing such actions.
(d) Upon the Closing, each Shareholder hereby authorizes Buyer to withhold an aggregate amount equal to $150,000 (the “Expense Fund Amount”) and an amount of $100,000 (the “Working Capital Holdback Amount” and, together with the Expense Fund Amount, the “Amounts”) from the amounts otherwise payable to the Shareholders pursuant to this Agreement and to deliver such amount to the Shareholder Representative. The Expense Fund Amount shall be held by the Shareholder Representative in a segregated account and shall be used for his the purposes of paying directly or her reimbursing the Shareholder Representative for any Representative Expenses incurred pursuant to this Agreement. The Working Capital Holdback Amount shall be held by the Shareholder Representative in a segregated account and shall be used for the purposes of paying any cash due under Section 2.8(c). The Shareholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Amounts other than as a result of its gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from The Shareholder Representative to is not acting as a withholding agent or in any similar capacity in connection with the Amounts, and has no tax reporting or income distribution obligations. The Shareholders as to will not receive any interest on the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver Amounts and assign to the Shareholder Representative full payment of his or her ratable share of the amount of any such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the The Shareholder Representative.
(d) All of the indemnities, immunities and powers granted Representative may contribute funds to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein Amounts from any consideration otherwise distributable to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken Shareholders. As soon as reasonably determined by the Shareholder Representative pursuant that the Amounts are no longer required to this Agreement and any instrumentbe withheld, agreement or document relating hereto, all of which actions or omissions the Shareholder Representative shall be legally binding upon all distribute the remaining Amounts (if any) to the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to Healthtrac Stockholders hereby appoint one Person Dx. Xxxxx X. Fries to act as their representativethe Shareholder Representative and authorize and direct the Shareholder Representative to (i) take any and all actions (including without limitation executing and delivering any documents, attorney in fact receiving notices of claims, incurring any costs and proxy with respect to certain matters specified in expenses for the account of Healthtrac and the Healthtrac Stockholders and making any and all determinations) which may be required or permitted by this Agreement (to be taken by Healthtrac, the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation Healthtrac Stockholders or removal of the Shareholder Representative, a new (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Shareholder Representative hereunder in connection with the transactions contemplated hereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholder Representative consistent herewith shall be appointed absolutely and irrevocably binding on Healthtrac and each Healthtrac Stockholder as if such party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such party's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, no Indemnifying Party shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against VDOT or defend any action brought by a vote of Majority HoldersVDOT or any third party with respect to any matter covered by Article 9, any such appointment right being irrevocably and exclusively delegated to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by Dx. Xxxxx X. Fries hereby acknowledges and accepts the Majority Holders foregoing authorization and appointment and agrees to appoint a new serve as Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under in accordance with this Agreement.
(b) The Shareholder Representative shall have such powers and authority serve as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementuntil his or her resignation, removal from office, incapacity or death or the expiration of his or her term of office (which shall not, in any event, expire before the expiration of the Indemnity Period); provided, however, that the Shareholder Representative will shall not have no obligation the right to act on behalf resign without (i) prior written notice to each Indemnifying Party and VDOT, and (ii) choosing a successor reasonably satisfactory to VDOT to serve until a successor is elected by the Indemnifying Parties. A Shareholder Representative may be removed at any time and a successor representative, reasonably satisfactory to VDOT, may be appointed, pursuant to written action by a majority of the ShareholdersIndemnifying Parties. VDOT hereby consents to any Healthtrac Stockholder serving as Shareholder Representative, except as expressly provided hereinthat VDOT first receive the notice referred to above. The Shareholder Representative will at all times be entitled Any successor to rely on any directions received from the Majority Holders. The a Shareholder Representative shall, at for purposes of this Agreement and the expense of the ShareholdersEscrow Agreement, be entitled deemed to engage such counselbe, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in from the absence time of bad faith on appointment, the part of the "Shareholder Representative) " for the relevant time period, and from and after such time, the term "Shareholder Representative" as used herein and therein shall be entitled deemed to conclusively rely on refer to such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the opinions terms of this Agreement and advice of such Personsthe Escrow Agreement.
(c) The Shareholder Representative shall not be entitled permitted to any feeretain counsel, commission or consultants and other compensation for advisors and the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as related thereto shall be paid by the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder RepresentativeIndemnifying Parties.
(d) All Notwithstanding any notice received by VDOT to the contrary (except any notice of the indemnitiesappointment of a successor Shareholder Representative approved by VDOT in accordance with this Section 9.5, immunities VDOT (i) shall be fully protected in relying upon and powers granted shall be entitled to rely upon, shall have no liability to any Indemnifying Party with respect to, and shall be indemnified by the Indemnifying Parties from and against all liability arising out of (any such indemnifiable amounts constituting Losses) actions, decisions and determinations of the Shareholder Representative under this Agreement and (ii) shall survive be entitled to assume that all actions, decisions and determinations of the termination of this AgreementShareholder Representative are fully authorized by the Indemnifying Parties.
(e) Notwithstanding anything herein The Shareholder Representative shall not be liable to the contrary, each Shareholder hereby acknowledges that Indemnifying Parties for the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out performance of any actions taken act or any inaction by the Shareholder Representative.
(f) The Company shall have the right failure to rely conclusively upon all instructions, requests, consents, elections and other actions taken act so long as he acted or omitted failed to act in good faith in what he reasonably believed to be taken by the Shareholder Representative pursuant scope of his authority and for a purpose which he reasonably believed to this Agreement and any instrument, agreement or document relating hereto, all be in the best interests of which actions or omissions shall be legally binding upon all the ShareholdersIndemnifying Parties.
Appears in 1 contract
Shareholder Representative. Effective automatically upon the approval of the Merger and the other Transactions by the Company Shareholders, and without further act of any Company Shareholder, each Company Shareholder shall be deemed to have appointed Xxxxxxx X. Xxxxxx (the “Shareholder Representative”) as the attorney-in-fact of such Company Shareholder (except such Company Shareholders, if any, that have perfected their dissenters’ rights under Alabama law), with full power and authority, including power of substitution, acting in the name of and for and on behalf of such Company Shareholder and to, in his sole discretion: (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact enter into and proxy with respect to certain matters specified in amend or waive any provision of this Agreement; (b) terminate this Agreement pursuant to the provisions of Article 9; (c) do all other things and take all other action under or related to this Agreement which he may consider necessary or proper to effectuate the "Merger and the other Transactions; (d) resolve any dispute with Parent, Purchaser or the Surviving Corporation over any aspect of this Agreement or any instrument or document delivered hereunder; (e) execute and take any actions under the Escrow Agreement; (f) give and receive notices and communications; (g) authorize delivery to Parent of cash from the Escrow Fund in satisfaction of claims by Parent and the Escrow Agent; (h) object to such deliveries; (i) agree to, negotiate, enter into settlements and compromises of, and demand litigation or arbitration and comply with orders and awards of courts and arbitrators in respect of such claims; (j) on behalf of such Company Shareholder to enter into any agreement to effectuate any of the foregoing items (a)–(i) which shall have the effect of binding such Company Shareholder as if such Company Shareholder had personally entered into such agreement(s), taken such actions or refrained from taking such actions described in Sections (a)-(i) above; and (k) take all other actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. Notwithstanding the foregoing, all actions taken or decisions made by the Shareholder Representative on behalf of the Company Shareholders shall be taken or made in a manner which is ratable and equitable among all Company Shareholders. This appointment and power of attorney shall be deemed an agency coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be subject to termination by operation of law, whether by the death or incapacity or liquidation or dissolution of any Company Shareholder or the occurrence of any other event or events and any action taken by the Shareholder Representative pursuant to this Section 2.13 shall be as valid as if any such death, incapacity, liquidation, dissolution or other event had not occurred, regardless or whether or not the Shareholder Representative"). The parties , the Company, Parent or Purchaser shall have designated Goeletreceived notice of any such death, LLC as the initial Shareholder Representativeincapacity, liquidation, dissolution or other event. The Shareholder Representative may resign at not terminate this power of attorney with respect to any timeCompany Shareholder or such successors or assigns without the consent of Parent. Effective automatically upon approval of the Merger and the other Transactions by the Company Shareholders, and a without further act of any Company Shareholders, each Company Shareholder agrees to hold the Shareholder Representative harmless and indemnify the Shareholder Representative, severally (and not jointly) in accordance with the amount of Merger Consideration received by such indemnifying Company Shareholder, with respect to any and all loss, damage or liability and expenses (including legal fees) which such Company Shareholder may be removed at sustain as a result of any time action taken in good faith by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders")Shareholder Representative. In the event of the death, physical or mental incapacity or resignation or removal of the Shareholder Representative, a new initial Shareholder Representative shall be appointed or any successor, the Company Shareholders shall, by a vote of Majority Holdersthe Company Shareholders who held at least a majority of the outstanding shares of Company Common Stock on the Execution Date, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to promptly appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative substitute and shall not have the effect of releasing the Shareholders from any liability under this Agreementin writing advise Parent thereof.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tier Technologies Inc)
Shareholder Representative. The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, ________ (a) The Shareholders agree to appoint one Person to act together with his permitted respective successors, collectively, the “Shareholder Representative”), as their representative, attorney in fact true and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timelawful agent and attorney-in-fact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative by his execution of this Agreement shall be appointed by a vote of Majority Holdersdeemed to have accepted such appointment, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from enter into any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement transactions contemplated by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 powers, authority and discretion conferred upon on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of any claim, action or proceeding for which any Company Shareholder or SOLS may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or (ii) in the absence of his own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any actions taken by the Shareholder Representative in his capacity as such, the Shareholder Representative shall incur have no responsibility whatsoever liability to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder SOLS, or any such other agreement, instrument or document, excepting only responsibility of its affiliates except for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata claims based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction fraud by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.. [SIGNATURES CONTINUED ON NEXT PAGE]
Appears in 1 contract
Samples: Share Acquisition Agreement
Shareholder Representative. (a) The Xx. Xxxx is hereby designated by the HS Shareholders agree and the HP Owners to appoint one Person to act serve as their representative, attorney in fact and proxy “Shareholder Representative” under this Acquisition Agreement with respect to certain the matters specified set forth in this Agreement Article 7 and, by his signature below, Xx. Xxxx hereby acknowledges such appointment and agrees to serve in such capacity on the terms set forth herein. Effective only upon the Closing, the Shareholder Representative shall act as the representative of the HS Shareholders and the HP Owners with respect to the matters set forth in this Article 7 and shall be authorized to act on behalf of such persons and to take any and all actions required or permitted to be taken by the HS Shareholders and the HP Owners under this Article 7 with respect to any claims (including the "settlement thereof) made by Calavo for indemnification pursuant to this Article 7 (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and arbitrators with respect to, any claims for indemnification). Xx. Xxxx, during the period that he serves as the Shareholder Representative"), shall be the only party entitled to assert the rights of the HS Shareholders and the HP Owners under this Article 7 after the Closing. The parties have designated GoeletAny person shall be entitled to rely on all statements, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timerepresentations, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal decisions of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The HS Shareholders and the HP Owners shall be bound by all actions taken by the Shareholder Representative in his capacity as such. The Shareholder Representative shall have such powers promptly, and in any event within ten days, provide written notice to the HS Shareholders and the HP Owners of any action taken on behalf of them by the Shareholder Representative pursuant to the authority as are necessary to carry out the functions assigned delegated to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided hereinArticle 7. The Shareholder Representative will at all times shall not be entitled liable to rely on any directions received from the Majority Holders. The HS Shareholder Representative shallor HP Owner for any error of judgment, at the expense of the Shareholdersor any action taken, or omitted to be entitled to engage such counseltaken, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (under this Acquisition Agreement, except in the absence case of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) its gross negligence or willful misconduct. The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled his services. Xx. Xxxx agrees not to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred resign his position as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder except by reason of any error in judgment his disability 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativedeath.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree In order to appoint one Person to act as their representativeefficiently administer the determination of any Indemnity Claims under this Agreement, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote the sole and exclusive representative of Majority Holders, such appointment the Socati Converted Shareholders in respect of their indemnity rights and obligations under this Agreement. The Parties shall be entitled to become effective upon rely on the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon as having the deathauthority to make all decisions and take all actions relating to the respective rights, resignation obligations and remedies of the Socati Converted Shareholders under this Agreement, and deal exclusively with the Shareholder Representative in respect of all such matters, including to deliver or removal receive any Notice of Claim or other notices or instructions in respect of an Indemnity Claim, to investigate, negotiate, settle, pursue and defend any Indemnity Claims, to give releases and discharges in respect of any Indemnity Claim on behalf of the Socati Converted Shareholders and to take all other actions that are either (i) necessary or appropriate in the judgement of the Shareholder Representative shall not have for the effect accomplishment of releasing the Shareholders from any liability under foregoing, or (ii) specifically mandated by this Agreementagreement.
(b) The All decisions, instructions and actions to be taken by the Socati Converted Shareholders, or any one of them, under this Agreement shall be deemed to be taken by such Socati Converted Shareholders if such decisions, instructions or actions are taken by the Shareholder Representative Representative, and such decisions, consents, instructions or actions shall have be final, binding and conclusive upon such powers Socati Converted Shareholders. Yooma and authority as are necessary to carry out the functions assigned to Subco may rely upon any such decision, consent, instruction or action by the Shareholder Representative under this Agreement; providedas being the decision, howeverconsent, that the Shareholder Representative will have no obligation to act on behalf instruction or action of the Socati Converted Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative will incur no liability of any kind with respect to any action or omission by the Shareholder Representative with respect to its services under this Agreement and any Ancillary Agreements, except in the event of liability resulting from the Shareholder Representative’s gross negligence, bad faith, fraud or wilful misconduct. The Shareholder Representative shall not be entitled liable for any action or omission pursuant to any fee, commission or other compensation for the performance advice of its services hereunderlegal counsel. The Socati Converted Shareholders shall jointly and severally indemnify, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees defend and expenses incurred as hold harmless the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, from 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all claims, liabilities, losses, damages, liabilitiescosts, claimspenalties, obligationsfines, costs forfeitures and expenses, expenses (including reasonable attorneys'expenses relating to legal counsel, accountants' experts and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, their staff) arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative’s role under this Agreement (the “Representative Losses”).
(d) All The Shareholder Representative shall be entitled recover any Representative Losses out of the indemnitiesIndemnity Shares that would otherwise be released to the Socati Converted Shareholders at the end of the Indemnity Period, immunities and powers granted to Yooma and the Shareholder Representative under this Agreement shall survive instruct the termination of this AgreementEscrow Agent accordingly.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in By virtue of approval of this Agreement and the Merger by the Company's Board of Directors and the Company Shareholders, and effective upon such approval, and without further act of any Company Shareholder, Xxxxx Xxxx shall be appointed as agent and attorney-in-fact (the "Shareholder Representative"). The parties have designated Goelet) for each Company Shareholder, LLC as for and on behalf of the initial Company Shareholders, to give and receive notices and communications, to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder RepresentativeRepresentative for the accomplishment of the foregoing. The Shareholder Representative shall have the right to resign and such agency may resign at any timebe changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the -------- ------- Shareholder Representative may not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote of Shareholders who collectively own more than 50% approval of the Registrable Securities at such time (holders of a majority in interest in the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for his or her services from the effect Parent or the Company. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of releasing the Shareholders from any liability under this AgreementCompany Shareholder.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Company Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall severally indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant shall constitute a decision of all Company Shareholders for whom a portion of the Escrow Amount otherwise issuable to this Agreement them is deposited in the Escrow Fund and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all each of such Company Shareholders, and the ShareholdersEscrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and every such Company Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tut Systems Inc)
Shareholder Representative. (a) The Shareholders Section 10.8.1 Xxxxxxxx Xxxxxx is hereby appointed and constituted the “Shareholder Representative” under this Agreement, and as such shall serve as agent for and have all powers as attorney-in-fact of each Holder, for and on behalf of each Holder, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to appoint one Person to act as their representativeto, attorney in fact negotiate or enter into settlements and proxy compromises of, and institute litigation and comply with orders of courts with respect to certain matters specified in any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement (or the "Shareholder Representative"). The parties have designated Goelet, LLC as Ancillary Agreements; and to take all actions necessary or appropriate in the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall not have notify Buyer of his or her intent to resign, and the effect Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of releasing the Shareholders Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability under this Agreement.
(b) to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have such powers reasonable access to information about the Surviving Corporation and authority as are necessary to carry out Buyer and the functions assigned to reasonable assistance of the Shareholder Representative Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Agreement; providedArticle 10, however, provided that the Shareholder Representative will have no obligation shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to act anyone (except on behalf of the Shareholders, except as expressly provided herein. a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (promptly notify each Holder in the absence event of bad faith on the part any decision, act, consent or instruction of the Shareholder Representative) shall be entitled Representative pursuant to conclusively rely on the opinions and advice of such Persons.
(c) this Section 10.8. The Shareholder Representative shall not be entitled liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any feeclaim, commission or other compensation for the performance of its services hereunderloss, but shall be entitled to the reimbursement by the Shareholders of all hisdamage and liability against such Shareholder Representative, her or its including without limitation reasonable attorneys’ fees and expenses incurred as the costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 4.2 hereof. In connection with this Agreement10.8, unless 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder or any extent that such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon claim arises from such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her ’s gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder No bond shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification required of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreementreceive no compensation for services as such.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Cnet Networks Inc)
Shareholder Representative. (a) The By approving the Merger at a special meeting of Shareholders agree or by written consent, each Shareholder shall have irrevocably (except as set forth in Section 1.1.1(b)) authorized and appointed the Shareholder Representative and any replacement representative appointed pursuant to appoint one Person Section 1.1.1(b), with full power of substitution, as such Shareholder’s representative and attorney-in-fact and exclusive agent to act as their representative, attorney in fact and proxy for such Shareholder with respect to certain all matters specified arising in connection with this Agreement (Agreement, including full power and authority, exercisable in the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal sole discretion of the Shareholder Representative, a new to: (i) take any action contemplated to be taken by the Shareholders under this Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Operative Document; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that the Shareholder Representative shall be appointed by a vote of Majority Holdersmay deem necessary or advisable in connection with this Agreement or any other Operative Document. Notwithstanding the foregoing, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided hereinherein or in any other Operative Document, and for purposes of clarity, there are no obligations of the Shareholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders and their successors, and any and all defenses that may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholder Representative taken in good faith under this Agreement are waived. Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. No Shareholder Representative shall be deemed a fiduciary of any other Shareholder by reason of such appointment.
(b) The Shareholder Representative may be removed by written agreement among Parent and a majority in interest of the Shareholders calculated with reference to each Shareholder’s Pro Rata Share. The Shareholder Representative will may resign at any time upon giving thirty (30) day’s prior written notice of such resignation to Parent and each Shareholder but shall exercise all times be entitled to rely on any directions received from the Majority Holderspowers enumerated in Section 1.1.1(a) until the effective date of such resignation. The Shareholder Representative shallIn the event of such removal or resignation, at or upon the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part death or disability of the Shareholder Representative) , a majority in interest of the Shareholders calculated with reference to each Shareholder’s Pro Rata Share shall promptly agree upon a replacement Shareholder Representative. In the event of the Shareholder Representative’s resignation, removal, death or disability, if the appointment of a replacement Shareholder Representative pursuant to the preceding sentence has not occurred prior to the scheduled expiration of any Survival Period set forth in Section Article 7 or any period in which any Indemnified Party is required to provide notice to the Shareholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement, then such relevant period shall be entitled deemed to conclusively rely on be extended by the opinions number of calendar days that elapsed between the Shareholder Representative’s resignation, removal, death or disability and advice the appointment of such Personsa replacement Shareholder Representative pursuant to the preceding sentence.
(c) The Neither the Shareholder Representative shall not be entitled to any feenor its members, commission or other compensation for managers, directors, officers, contractors, agents and employees (collectively, the performance of its services hereunder, but “Shareholder Representative Group”) shall be entitled to the reimbursement by the Shareholders of all his, her liable for any act done or its fees and expenses incurred omitted hereunder as the Shareholder Representative pursuant to Section 4.2 hereofwhile acting in good faith. 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 Shareholders shall indemnify the Shareholder Representative hereunder, Group and defend and hold the Shareholder Representative shall incur no responsibility whatsoever to Group harmless against any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against and all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, Losses arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder or under any claimagreements ancillary hereto, investigation, challenge, action including the fees and expenses of any legal counsel or proceeding or experts retained by the Shareholder Representative and in connection with seeking recovery from insurers (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided that in the event that any appeal thereofsuch Shareholder Representative Expense is finally adjudicated to have been directly caused by the bad faith, relating to the acts gross negligence or omissions willful misconduct of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of Representative, the Shareholder Representative hereunder for his or her will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such bad faith, gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver If not paid directly to the Shareholder Representative full payment of his by the Shareholders, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from the Shareholder Representative Fund; provided that while this Section 9.14(c) allows the Shareholder Representative to be paid from the Shareholder Representative Fund, this does not relieve the Shareholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or her ratable share of incurred, nor does it prevent the amount of such deficiency, in accordance with such Shareholder's percentage interestShareholder Representative from seeking any remedies available to it at law or otherwise. In no event shall will the Company Shareholder Representative be responsible for required to advance its own funds or incur any reimbursement financial liability on behalf of the Shareholders or indemnification otherwise. The Shareholders acknowledge and agree that the foregoing indemnities and immunities will survive the resignation or removal of the Shareholder Representative.
(d) All of Representative and the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive Closing and/or the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person Shareholder Representative is hereby irrevocably appointed to act as their representativethe agent on behalf of the Holders (such appointment being affirmed pursuant to the Lock Up Agreements and the Lock Up and Retention Agreements being delivered concurrently herewith as required by Section 6.12), attorney in fact and proxy the Shareholder Representative hereby accepts such appointment. Purchaser shall be entitled to deal exclusively with respect the Shareholder Representative on all matters relating to certain matters specified in this the Registration Statement pursuant to Section 6.6(e), indemnification pursuant to Article IX and the Escrow Agreement pursuant to its terms, and 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 Holder by the "Shareholder Representative"). The parties have designated Goelet, LLC as and on any other action taken or purported to be taken on behalf of any Holder by the initial Shareholder Representative, as fully binding upon such Holder. The If the Shareholder Representative may resign shall die, liquidate, dissolve or otherwise be unable (whether as a result of a disability or otherwise) or unwilling to fulfill the responsibilities as agent of the Holders, then Holders representing a majority in interest of the amount of shares of Purchaser Common Stock then held in the Escrow Fund shall, within ten (10) days after notice from Purchaser of such event, appoint a successor representative and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Shareholder Representative” for purposes of this Agreement. If for any reason there is no Shareholder Representative at any time, and a Shareholder Representative may be removed at any time by all references herein to the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by deemed to refer to Holders representing a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal majority in interest of the Shareholder Representative shall not have amount of shares of Purchaser Common Stock then held in the effect of releasing the Shareholders from any liability under this AgreementEscrow Fund.
(b) The Shareholder Representative shall have such powers reasonable access to information about the Company and authority as are necessary to carry out its Subsidiaries and the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf reasonable assistance of the Shareholders, except as expressly provided hereinCompany’s and its Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder. The Shareholder Representative will at all times be entitled to rely on shall not have any directions received from liability for any action taken or suffered by it or omitted hereunder as Shareholder Representative while acting in good faith and in the Majority Holdersexercise of reasonable judgment. The Shareholder Representative shallmay, at the expense of the Shareholdersin all questions arising hereunder, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith rely on the part advice of counsel and the Shareholder Representative shall not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice. The Shareholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and the Escrow Agreement and no implied covenants or obligations shall be read into this Agreement against the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance seek reimbursement of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and reasonable expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In in connection with its obligations under this Agreement, the Escrow Agreement and any instrumentrelated agreements, agreement or document relating hereto or theretoincluding, but not limited to, reasonable fees and in exercising or failing to exercise all or any costs of counsel, accountants and other third parties (the powers conferred upon “Shareholder Representative Expenses”), from the Shareholder Representative hereunderEscrow Fund or, if such fund is insufficient to pay for such expenses, from the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason Holders jointly and severally, with a right 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 willful misconduct. Each Shareholder shall indemnify, contribution on a pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativebasis.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Amalgamation (Palmsource Inc)
Shareholder Representative. (a) The Shareholders agree Immediately prior to appoint one Person the Effective Time, each Company Shareholder and Company Option Holder hereby irrevocably constitutes and appoints CMT SR, Inc. as her, his or its Shareholder Representative as the true and lawful agent and attorney-in-fact of such Company Shareholder and/or Company Option Holder with full powers of substitution to act as their representativein the name, attorney in fact place and proxy stead of such Company Shareholder and/or Company Option Holder with respect to certain matters specified in the performance, and exercise of any rights and obligations, on behalf of such Company Shareholder and/or Company Option Holder under the terms and provisions of this Agreement (the "Shareholder Representative"). The parties have designated GoeletAgreement, LLC as the initial Shareholder Representative. The Shareholder Representative same may resign at any timebe from time to time amended, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at to do or refrain from doing all such time (the "Majority Holders"). In the event of the deathfurther acts and things, resignation or removal of the Shareholder Representativeand to execute all such documents on such Company Shareholder’s and/or Company Option Holder’s behalf, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of as the Shareholder Representative shall not have deem necessary or appropriate in connection with any of the effect of releasing the Shareholders from any liability transactions contemplated under this Agreement., including:
(bi) The Shareholder Representative shall have such powers execute and authority as are necessary to carry out the functions assigned deliver this Agreement (and any amendments hereto),
(ii) take all actions required, or agree upon or compromise any matter related to the Shareholder Representative under calculation of any true-up adjustments described in Section 2.5, or pursuant to the terms hereof or other payments to be made in respect of the transactions contemplated by this Agreement; provided, howeverincluding the Merger,
(iii) to do or refrain from doing any act or deed in respect of the exchange procedures contemplated by Section 2.4 or related thereto,
(iv) give and receive notices and communications and receive service of process on behalf of each of the Company Shareholders and Company Option Holders, that the Shareholder Representative will have no obligation to (v) act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at Company Shareholders and Company Option Holders with respect to all times be entitled indemnification matters referred to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing including the right to exercise all or any compromise on behalf of the powers conferred upon the such Company Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of and/or Company Option Holder any indemnification hereunderclaim made by or against such Company Shareholder and/or Company Option Holder involving this Agreement, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall (vi) act for the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities Shareholders and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party Option Holders with respect to or arising out all post-Closing matters, including without limitation pursuing any claim for any alleged breach of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.by Parent,
Appears in 1 contract
Samples: Merger Agreement (Ev3 Inc.)
Shareholder Representative. (ai) The Shareholders agree to appoint one Person to In the event that the Merger is approved, effective upon such vote, and without further act of any shareholder, Xxxxxx Xxxxx shall be appointed as their representative, attorney in agent and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative")) for -------------------------- each Company Shareholder, for and on behalf of shareholders of the Company, to give and receive notices and communications, to authorize delivery to Parent of payments from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. The parties have designated Goelet, LLC as Such agency may be changed by the initial Shareholder Representative. The shareholders of the Company from time to time upon not less than thirty (30) days prior written notice to Parent; provided that the Shareholder Representative may resign at any time, and a Shareholder Representative may not be removed at any time by the vote of Shareholders who collectively own more than 50% unless a majority-in-interest of the Registrable Securities at Company Shareholders agree to such time (removal and to the "Majority Holders"). In the event identity of the death, resignation or removal substituted agent. No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for services as such. Notices or communications to or from the effect Shareholder Representative shall constitute notice to or from each of releasing the Company Shareholders from any liability under this Agreementor their permitted transferees.
(bii) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary to carry out in the functions assigned to exercise of reasonable judgment. The Company Shareholders shall severally indemnify the Shareholder Representative under this Agreement; providedand hold him or her harmless against any loss, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions administration of the Shareholder Representative Shareholders Representative's duties hereunder. The foregoing indemnification shall not apply in , including the event reasonable fees and expenses of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The In order to administer the transactions contemplated by this Agreement, including, without limitation, the rights and indemnification obligations of the Shareholders agree to under Sections 2.03 and 4.03, the Shareholders hereby designate and appoint one Person to act the Major Shareholder as their representative, attorney in representative for this Agreement and as attorney-in-fact and proxy with respect to certain matters specified agent for and on behalf of each Shareholder (in this Agreement (such capacity, the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote Said power of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative attorney shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new coupled with an interest and shall be irrevocable.
(b) Each Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of hereby authorizes the Shareholder Representative shall not have to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement, including, without limitation, (i) to take all action necessary in connection with the effect indemnification obligations of releasing the Shareholders from under Section 4.03, including, the defense or settlement of any liability claims and the making of payments with respect thereto, (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 Shareholders by the Shareholder Representative pursuant to this Agreement.
(bc) The Shareholder Representative shall have such powers and authority as are necessary to carry out In the functions assigned to the Shareholder Representative under this Agreement; provided, however, event that the Shareholder Representative will have no obligation dies, becomes unable to act on behalf perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of at least 50% of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (ownership interest in the absence of bad faith on Company immediately prior to the part of the Shareholder Representative) Merger shall be entitled select another representative to conclusively rely on the opinions fill such vacancy and advice of such Persons.
(c) The substituted Shareholder Representative shall not be entitled deemed to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with for all purposes of this Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Buyer and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any shall indicate the identity of the powers conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the substitute Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating who shall have agreed to the acts or omissions terms of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders this Section as to the existence of if he were a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representativeparty hereto.
(d) All of decisions and actions by the indemnitiesShareholder Representative, immunities and powers granted to including, without limitation, any agreement between the Shareholder Representative under this Agreement shall survive and the termination of this Agreement.
(e) Notwithstanding anything herein Buyer relating to the contraryindemnification obligations of the Shareholders under Section 4.03, each including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder hereby acknowledges that shall have the Company right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall not have any responsibility or obligation whatsoever incur no liability to any such Shareholder or to any other party the Shareholders with respect to any action taken or arising out suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 4.03, including the defense or settlement of any actions taken claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel, and will not be liable to the Shareholders for any inaction action done, omitted or suffered in good faith by the Shareholder Representative.
(fe) The Company shall have the right Buyer is hereby authorized to rely conclusively upon all instructionson the actions, requests, consents, elections instructions and other actions taken or omitted to be taken by decisions of the Shareholder Representative pursuant with respect to this Agreement and any instrumentAgreement, agreement or document relating heretoincluding, all without limitation, the indemnification obligations of which actions or omissions shall be legally binding upon all the Shareholders.Shareholders under Section
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree In connection with this Agreement, the Shareholder Representative shall have exclusive power and authority on behalf of the holders of Common Stock and Company Options and, prior to appoint one Person to act as their representative, attorney in fact and proxy the Effective Time on behalf of the Company with respect to certain matters specified in any action taken pursuant to this Agreement (including with respect to indemnification claims, waivers and adjustments to the "Merger Consideration) and the Parent Indemnified Parties shall be entitled to rely on such actions of the Shareholder Representative". The Shareholder Representative is hereby appointed as agent and attorney-in-fact for each holder of Common Stock or Company Options with full power of substitution to act in the name, place and stead of such holder with respect to the transactions contemplated by this Agreement and the other Transaction Documents and to act on behalf of such holder in any amendment of or litigation or arbitration involving this Agreement and the other Transaction Documents and to do or refrain from doing all such further acts and things, and to negotiate, execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated by this Agreement and the other Transaction Documents. The Shareholder Consents shall expressly ratify and approve the designation of Xxxx Xxxxxxxxx as Shareholder Representative, as well as all of the foregoing set forth in this Section 10.2(a). The parties have designated Goelet, LLC as Shareholder Representative hereby accepts such appointment and agrees to serve in the initial Shareholder Representativecapacity contemplated by this Section 10.2. The Shareholder Representative may resign at any time, and a the Shareholder Representative may be removed at any time by the vote of Shareholders Persons who collectively own owned more than fifty percent (50% %) of the Registrable Securities at such time shares of Common Stock immediately prior to the Effective Time (the "“Majority Holders"”). In the event of the death, resignation or removal of that the Shareholder RepresentativeRepresentative has resigned or been removed, a new Shareholder Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure successor Shareholder Representative must agree to be bound by the Majority Holders terms and conditions of this Agreement applicable to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative and will thereupon become the Shareholder Representative for purposes of this Agreement and all other applicable Transaction Documents. Parent shall not have be provided with ten (10) days prior written notice of any change in the effect of releasing the Shareholders from any liability under this AgreementShareholder Representative.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned not (i) be liable to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf holders of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission Common Stock or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 Company Options for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by it or any agent employed by it under or in connection with this Agreement or the other Transaction Documents or in connection with any of the transactions contemplated hereby or thereby or (ii) owe any fiduciary duty or have any fiduciary responsibility to any of the holders of Common Stock or Company Options or the Company as a result of actions taken as the Shareholder Representative pursuant to this Agreement or the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Shareholder Representative’s gross negligence, bad faith or willful misconduct. Provided that all payments and distributions made by or at the direction of Shareholder Representative hereunder to the holders of Common Stock and Company Options are made based on the good faith determination of each such holder’s Pro Rata Portion or Pro Rata Adjusted Percentage, as the case may be, thereof for each share of Common Stock or Company Option to acquire a share of Common Stock that had been held by such holder immediately prior to the Effective Time, the Shareholder Representative shall not be liable to any instrumentholder of Common Stock or Company Options if the apportionment with respect to such payment or distribution is subsequently determined to have been made in error, agreement and the sole recourse of any holder of Common Stock or document relating heretoCompany Options to whom such payment or distribution was due, all of which actions or omissions but not made, shall be legally binding upon all to recover from other holders of Common Stock or Company Options, as applicable, any payment in excess of the Shareholdersamount to which they are determined to have been entitled pursuant to this Agreement.
(c) If the Shareholder Representative incurs any out-of-pocket expenses (including, without limitation, any reasonable fees and expenses of counsel) in its capacity as Shareholder Representative under this Agreement or the other Transaction Documents or in connection with any of the transactions contemplated hereby or thereby, such out-of-pocket expenses shall be paid from, or reimbursed by the holders of Common Stock and Company Options ratably in accordance with each such holder’s Pro Rata Adjusted Percentage thereof for each share of Common Stock or Company Option to acquire a share of Common Stock that had been held by such holder immediately prior to the Effective Time and may be deducted from any amounts otherwise payable to such holders from distributions out of the Merger Consideration Escrow Account or the Indemnification Escrow Account.
Appears in 1 contract
Shareholder Representative. (a) The In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders agree to under Section 6.03, the Shareholders hereby designate and appoint one Person to act Xxxxxxxx X. Xxxxxxxx as their representative, attorney in representative for this Agreement and the Escrow Agreement and as attorney-in-fact and proxy with respect to certain matters specified agent for and on behalf of each Shareholder (in this Agreement (such capacity, the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote Said power of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative attorney shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative coupled with an interest and shall not have the effect of releasing the Shareholders from any liability under this Agreementbe irrevocable.
(b) The Each Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement; provided, howeverincluding, that without limitation, (i) to take all action necessary in connection with the Shareholder Representative will have no obligation indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to act give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that Xxxxxxxx X. Xxxxxxxx or any instrumentsubstitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or document Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, all of which actions or omissions shall be legally binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN XXXXXXXX ACQUISITION CORP., THE XXXXXXXX GROUP, INC., XXXXXXXX X. XXXXXXXX, XXXXX X. XXXXXXXX, XXXXXXX X. XXXXXXXXX, XXXXXXX X. XXXXXXXXXXXX AND XXXXXXXXX X. XXXXXXX DATED DECEMBER ___, 1999]
Appears in 1 contract
Samples: Merger Agreement (Interliant Inc)
Shareholder Representative. (a) The Shareholders agree to appoint one Person By approving this Agreement and the transactions contemplated hereby or by executing and delivering a letter of transmittal, each Shareholder, SAFE 1 Holder and OneQor Post-Closing SAFE Holder shall have irrevocably authorized and appointed Shareholder Representative as such Person’s representative and attorney-in-fact to act as their representative, attorney in fact and proxy on behalf of such Person with respect to certain matters specified in this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Shareholder Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Terra Tech pursuant to Section 7.5;
(iii) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Section 7.5;
(iv) execute and deliver all documents necessary or desirable to carry out the "intent of this Agreement and any Transaction Agreement;
(v) make all elections or decisions contemplated by this Agreement and any Transaction Agreement;
(vi) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and
(vii) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing.
(b) Terra Tech shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement and 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 Shareholder, SAFE 1 Holder or OneQor Post-Closing SAFE Holder by Shareholder Representative"), and on any other action taken or purported to be taken on behalf of any Shareholder, SAFE 1 Holder or OneQor Post-Closing SAFE Holder by Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders, SAFE 1 Holders or OneQor Post-Closing SAFE Holders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Terra Tech relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders, SAFE 1 Holders and OneQor Post-Closing SAFE Holders and shall be final, binding and conclusive upon each such Person. No Shareholder, SAFE 1 Holder or OneQor Post-Closing SAFE Holder shall have the right to object to, dissent from, protest or otherwise contest the same. The parties have designated Goeletprovisions of this Section, LLC as including the initial Shareholder Representative. power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Shareholders, SAFE 1 Holders or OneQor Post-Closing SAFE Holders or by operation of Law, whether by death or other event.
(c) The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at for any time reason or no reason by the vote or written consent of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at Shareholders; provided, however, in no event shall Shareholder Representative resign or be removed without the holders of a majority of the Shares prior to the Merger having first appointed a new Shareholder Representative who shall assume such time (duties immediately upon the "Majority Holders")resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the holders of a majority of the Shares prior to the Merger. Notice of such vote or a copy of Majority Holdersthe written consent appointing such new Shareholder Representative shall be sent to Terra Tech, such appointment to become be effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal later of the Shareholder Representative shall not have date indicated in such consent or the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have date such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementnotice is received by Terra Tech; provided, howeverthat until such notice is received, that Terra Tech, Merger Sub and the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times Surviving Corporation shall be entitled to rely on any directions received from the Majority Holders. The decisions and actions of the prior Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary described in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder RepresentativeSection 12.16(a) shall be entitled to conclusively rely on the opinions and advice of such Personsabove.
(cd) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled liable to the reimbursement by the Shareholders of all hisShareholders, her SAFE 1 Holders or its fees and expenses incurred as the Shareholder Representative OneQor Post-Closing SAFE Holders for actions taken pursuant to Section 4.2 hereof. In connection with this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and any instrument, agreement or document relating hereto or thereto, other professionals and in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative hereunder, the experts retained by Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason be conclusive evidence of any error good faith). The Shareholders shall severally and not jointly (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 willful misconduct. Each Shareholder shall indemnify, accordance with their pro rata based upon such holder's percentage interestportion of the Existing Shares), the indemnify and hold harmless Shareholder Representative against from and against, compensate it for, reimburse it for and pay any and all losses, damages, liabilities, claims, obligationsactions, costs damages and expenses, including reasonable attorneys', accountants' and other experts' or consultant's ’ fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoeverdisbursements, arising out of or and in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders its activities as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive (the termination of this Agreement.
(e) Notwithstanding anything herein to “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the contrary, each Shareholder hereby acknowledges event it is finally adjudicated that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken a Representative Loss or any inaction portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant shall reimburse the Shareholders the amount of such indemnified Representative Loss attributable to this Agreement and any instrumentsuch gross negligence, agreement fraud, intentional misconduct or document relating hereto, all of which actions or omissions bad faith. The Representative Losses shall be legally binding upon all satisfied from the Shareholders, severally and not jointly (in accordance with their pro rata portion of the Shares).
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Shareholder Representative. (a) The Shareholders agree Shareholder Representative shall have the exclusive authority to appoint one Person give and receive notices and communications pursuant to act as their representative, attorney in fact and proxy the terms of this Article 6 solely with respect to certain matters specified indemnification claims by the Terra Tech Indemnified Parties to be satisfied solely by the delivery of Holdback Shares to the Terra Tech Indemnified Parties, to authorize delivery to the Terra Tech Indemnified Parties of the Holdback Shares in this Agreement (satisfaction of indemnification claims by the "Shareholder Representative"). The parties have designated GoeletTerra Tech Indemnified Parties as contemplated by Section 6.3, LLC as to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and take legal actions and comply with orders of courts and awards of arbitrators with respect to indemnification claims by the initial Shareholder Representative. The Terra Tech Indemnified Parties that will or may be paid or otherwise satisfied solely by the delivery of Holdback Shares, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by for the vote of Shareholders who collectively own more than 50% accomplishment of the Registrable Securities at such time (the "Majority Holders")foregoing. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive no compensation for services rendered. Notices or communications to or from the effect Shareholder Representative shall constitute notice to or from each of releasing the Company Shareholders from any liability under this Agreementsolely with respect to indemnification claims by the Terra Tech Indemnified Parties to be satisfied solely by the delivery of Holdback Shares to the applicable Terra Tech Indemnified Parties.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder in her capacity as Shareholder Representative, except to the extent she has acted with willful misconduct, and authority as are necessary any act done or omitted pursuant to carry out the functions assigned to advice of counsel shall be conclusive evidence that she did not act with gross negligence or willful misconduct. The other Shareholders shall severally and not jointly indemnify the Shareholder Representative under this Agreement; providedand hold her harmless against any loss, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary incurred in connection with exercising their powers and performing their function hereunder and (in the absence of bad good faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the duties hereunder, including any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholder Representative ("Outstanding Shareholder Representative Expenses"). If not paid directly to the acts Shareholder Representative by the Company Shareholders, such losses, liabilities or omissions expenses may be recovered by the Shareholder Representative from the Escrow Shares (if any) that otherwise would be distributed to the Company Shareholders hereunder, and such recovery (if any) of Outstanding Shareholder Representative Expenses from such Escrow Shares will be made from the Company Shareholders according to their respective Pro Rata Shares.
(c) A decision, act, consent or instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in constitute a decision of all the event Company Shareholders and shall be final, binding and conclusive upon each of the Company Shareholders, and the Escrow Agent and Terra Tech may rely upon any action decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder for his as being the decision, act, consent or her gross negligence or willful misconduct. In the event instruction of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder RepresentativeShareholders.
(d) All of Notwithstanding the indemnitiesforegoing, immunities and powers granted to the Shareholder Representative will not take any action required or authorized under this Agreement without the prior written consent of Xxxxxx Xxxxxxxxx acting on behalf of the Management Group (the "Management Group Representative"), which consent shall survive not be unreasonably withheld, delayed, denied, or conditioned. The Management Group Representative may be replaced at any time by the termination affirmative written consent of this Agreement.
holders of a majority of the Shares held by the Management Group (e) Notwithstanding anything herein measured as of immediately prior to the contrary, each Shareholder hereby acknowledges that Closing). In the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by event the Shareholder Representative.
(f) The Company shall have Representative and the right Management Group Representative are unable to rely conclusively upon all instructions, requests, consents, elections and other actions taken agree on an action required or omitted permitted to be taken by the Shareholder Representative hereunder, such matter will be decided by written consent of holders of a majority of the Shares held by all Company Shareholders (measured as of immediately prior to Closing), or their respective heirs and assigns, and such decision shall be binding on all Company Shareholders. In the event of a deadlock after all Company Shareholders vote, the matter under consideration will be decided pursuant to the disputes resolution procedure set forth in Section 6.7(e) immediately below.
(e) The exclusive method for resolving any and all disputes, claims or controversies arising out of or relating to this Section 6.7, shall be final and binding arbitration before JAMS, or its successors. Either the Shareholder Representative of the Management Group Representative may commence the arbitration process called for in this Section 6.7 by filing a written demand for arbitration with JAMS, with a copy to all of the Company Shareholders. Notwithstanding the amount or issue in dispute, the arbitration will administered in accordance with the Streamlined Arbitration Rules and Procedures (the "Rules") in effect at the time of filing of the demand for arbitration, and conducted at a location determined by the arbitrator within Alameda County, California. The arbitrator shall be a retired judge with significant experience resolving commercial disputes. The arbitrator's fees in connection with any such arbitration proceeding shall initially be shared equally among the Company Shareholders, subject to any reallocation in accordance with the arbitrator's decision. The arbitrator will also have the authority to award reimbursement of reasonable attorney's fees to the prevailing party to be shared by one or both of the other parties as determined by the arbitrator. In light of the parties' desire to proceed informally, expeditiously and at minimal expense, the parties agree to waive all discovery and any oral hearing and to submit all disputes to the arbitrator based solely upon written submissions. The arbitrator shall apply the substantive and procedural laws of the State of California, without regard to the conflicts of law principles of such state. The arbitrator's decision and award shall be rendered in writing with counterpart copies to all parties. Judgment upon an arbitration may be entered in any court having competent jurisdiction thereof, and shall be binding, final and non-appealable. In the event of any conflict between this Section 6.7(e) and the Rules, this Section 6.7(e) shall govern and control. For the avoidance of doubt, the arbitration procedure in this Section 6.7(e) shall only apply to disputes among Company Shareholders with respect to this Section 6.7, and any other disputes under this Agreement and may be resolved in any instrument, agreement or document relating hereto, all court of which actions or omissions shall be legally binding upon all the Shareholders.competent jurisdiction in accordance with Section 11.6
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Shareholder Representative. (a) The Shareholders In the event that the Merger is approved, effective upon such vote, and without further act of any shareholder, Jxxxxx Xxxxxxx shall be appointed as agent and attorney-in-fact (the “Shareholder Representative”) for each Shareholder, for and on behalf of the Shareholders, to give and receive notices and communications, to authorize delivery to Parent of cash and shares of Parent Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all actions necessary or appropriate in this Agreement (the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than 30 days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any time, not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote of Shareholders who collectively own more than 50% approval of the Registrable Securities at such time (holders of a majority in interest in the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for his or her services. The Shareholder Representative shall be entitled to reimbursement from time to time of any reasonable expenses out of funds available from the effect Escrow Fund by delivering to the Escrow Agent a reasonably detailed notice thereof. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of releasing the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall severally indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholders.
(c) A decision, investigationact, challenge, action consent or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply constitute a decision, act, consent or instruction of all Shareholders for whom a portion of the Escrow Amount otherwise issuable to them are deposited in the event Escrow Fund and shall be final, binding and conclusive upon each of such Shareholders, and the Escrow Agent and Parent may rely upon any action such decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder as being the decision, act, consent or instruction of each and every such Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Netiq Corp)
Shareholder Representative. (a) The Shareholders agree Pursuant to appoint one Person to the Merger Agreement, the Shareholder Representative shall act as their representativethe agent of the Shareholders and is entitled to give and receive notices and communications, attorney to authorize delivery by the Escrow Agent to Parent Group Members of specified amounts from the Escrow Amount in fact satisfaction of claims by Parent Group Members, to object to such deliveries in accordance with the terms of this Escrow Agreement, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all actions necessary or appropriate in this Agreement (the "reasonable judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing. The parties have Person designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a to be Shareholder Representative may be removed at any time by changed in accordance with the vote of Shareholders who collectively own more than 50% of provisions set forth in the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Merger Agreement.
(b) The Shareholder Representative shall have such powers not be liable to any holder of Company Common Stock for any act done or omitted under the Merger Agreement or hereunder as Shareholder Representative while acting in good faith and authority as are necessary to carry out in the functions assigned exercise of reasonable judgment, and any act done or omitted pursuant to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf written advice of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) counsel shall be entitled to conclusively rely on the opinions and advice conclusive evidence of such Personsgood faith.
(c) The No bond shall be required of the Shareholder Representative and the Shareholder Representative shall not be entitled to any fee, commission or other receive no compensation for the performance of its his services hereunder, but shall be entitled . At least five (5) days prior to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 first anniversary of the powers conferred upon the Shareholder Representative hereunderEffective Date, the Shareholder Representative shall incur no responsibility whatsoever deliver written notice to any Shareholder the Escrow Agent and Parent setting forth the payment amount of the reasonable out-of-pocket expenses incurred 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claimhis duties under the Merger Agreement and hereunder (the "SHAREHOLDER REPRESENTATIVE'S EXPENSES"), investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to which expenses shall be reimbursed from the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, Escrow Amount upon written notice from instruction of Parent and the Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of extent that any such indemnification amountShareholder Representative's Expenses together with any other Acquisition Expenses exceed $200,000.
(d) Neither Parent, each such holder any Parent Group Member, nor the Escrow Agent shall promptly deliver to be responsible or liable for any actions taken, suffered or omitted by the Shareholder -10- 13 Representative full payment of his or her ratable share of the amount of such deficiency, in accordance connection with such ShareholderShareholder Representative's percentage interest. In no event shall the Company be responsible for capacity as such, and each of them may conclusively and fully rely on any reimbursement action or indemnification writing of the Shareholder Representative.
(de) All A decision, act, consent or instruction of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive constitute a decision of all Shareholders and shall be final, binding and conclusive upon each such Shareholder, and the termination Escrow Agent and Parent may conclusively and fully rely upon any decision, act, consent or instruction of this Agreement.
(e) Notwithstanding anything herein to the contraryShareholder Representative as being the decision, act, consent or instruction of each and every such Shareholder without any further inquiry or investigation. The Escrow Agent and each Parent Group Member are hereby acknowledges that the Company shall not have fully indemnified and relieved from any responsibility or obligation whatsoever liability to any such Shareholder or to any other party with respect to or arising out of Person for any actions taken taken, suffered or any inaction omitted by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Indemnification and Escrow Agreement (Harris Corp /De/)
Shareholder Representative. (a) The Each of the Company Shareholders agree to appoint one Person to act as their representative, attorney in fact hereby appoints (and proxy with respect to certain matters specified in by his execution of this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed Xxxxxxx X. Xxxxxx hereby accepts his appointment) as the true, exclusive and lawful agent and attorney-in-fact, of the Company Shareholders to act in the name, place and stead of the Company Shareholders in connection with the transactions contemplated by a vote this Agreement, in accordance with the terms and provisions of Majority Holdersthis Agreement, and to act on behalf of the Company Shareholders in any Proceeding or Dispute involving this Agreement, to do or refrain from doing all such appointment further acts and things, and to become effective upon execute all such documents on behalf of the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of Company Shareholders as the Shareholder Representative shall not have deem necessary or appropriate in connection with the effect of releasing the Shareholders from any liability under transactions contemplated by this Agreement, including the power:
(i) to act for the Company Shareholders 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 Shareholders and to transact matters of arbitration or other Proceedings;
(ii) to execute and deliver all amendments, waivers, Ancillary Agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Company Shareholders and apply such funds in payment for such expenses; and
(v) to do or refrain from doing any further act or deed on behalf of the Company Shareholders that the Shareholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Shareholders could do if personally present.
(b) The Shareholder Representative shall have such powers may be removed or replaced only upon delivery of written notice to Parent by each of the Company Shareholders. Parent, the Surviving Company and authority as are necessary to carry out the functions assigned to any other Person may conclusively and absolutely rely, without inquiry, upon any written instrument delivered by the Shareholder Representative under this Agreementin all matters referred to herein. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for its, his or her services; provided, however, that the Shareholder Representative will have shall be entitled to reimbursements of expenses pursuant to Section 12.09(d). The Shareholder Representative shall act for the Company Shareholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interest of the Company Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible or liable to the Company Shareholders for any Damages the Company Shareholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful misconduct in the performance of his, her or its duties under this Agreement. The Shareholder Representative shall incur no obligation liability to act the Company Shareholders with respect to any action taken, omitted to be taken or suffered by them in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him, her or it to be genuinely and duly authorized, nor for any other action or inaction except its own willful misconduct. The Shareholder Representative may, in all questions arising under this Agreement, or any other agreement, rely on the advice of counsel and the Shareholder Representative shall not be liable to the Company Shareholders for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice. The Shareholder Representative is authorized by the Company Shareholders to incur expenses on behalf of the Shareholders, except as expressly provided hereinCompany Shareholders in acting hereunder. The parties hereto understand and agree that the Shareholder Representative will at all times be entitled to rely is acting solely on any directions received from behalf of and as agent for the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts Company Shareholders and other agents and consultants as they shall deem necessary not in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Personshis or her personal capacity.
(c) The Each Company Shareholder Representative shall not be entitled agrees to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as indemnify the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason for its respective Pro Rata Share of any error in judgment or other act or omission performed or omitted hereunder or any such other agreementand all liabilities, instrument or documentobligations, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilitiespenalties, claimsactions, obligationsjudgments, costs and expensessuits, costs, expenses (including the reasonable attorneys', accountants' and other experts' or consultant's fees and the amount expenses of any judgment against legal counsel retained by the Shareholder Representative, ) or disbursements of any kind or nature whatsoever, whatsoever which may at any time be imposed on or incurred by the Shareholder Representative in any way relating to or arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative’s duties hereunder or this Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Company Shareholder shall be liable for any of the foregoing to the extent they arise from the Shareholder Representative’s willful misconduct.
(d) All of the indemnitiesreasonable and documented out-of-pocket expenses, immunities including legal fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contraryexpenses and fees, in each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructionscase, requests, consents, elections and other actions taken or omitted to be taken incurred by the Shareholder Representative in fulfilling the duties of the Shareholder Representative as agent for the Company Shareholders hereunder shall be paid or reimbursed by the Company Shareholders based on their Pro Rata Share. Without limiting the generality of the foregoing, the Shareholder Representative is authorized to deduct from any payment due to the Company Shareholders pursuant to this Agreement and the amount of any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholdersreimbursement.
Appears in 1 contract
Samples: Merger Agreement (Universal Truckload Services, Inc.)
Shareholder Representative. The Purchaser hereby irrevocably constitutes and appoints, effective as of the date hereof, Xxxxx Xxxx (a) The Shareholders agree to appoint one Person to act as their representativetogether with his permitted successors, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "a “Shareholder Representative"”). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at Purchaser’s true and lawful agent and attorney-in-fact to enter into any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers the transactions contemplated by this Agreement and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled transactions relating to the reimbursement by the Shareholders of all hisExchange Transaction, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 powers, authority and discretion conferred upon the Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder on him under this Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or agreements entered into in connection with the Exchange Transaction, to waive any terms and conditions of any such agreements, to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, action, undertaking, suit, claim, investigation, challenge, action or proceeding arising with respect to any transaction contemplated by any such agreements and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and irrevocable. The Shareholder Representative will not be liable for any action taken or not taken by him in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply his obligations under this Agreement in the event absence of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her own gross negligence or willful misconduct. In The Purchaser acknowledges and agrees that the event Company and the Shareholder Representative, in effectuating the Exchange Transaction, will be relying upon the representations and warranties contained in Section 3 hereof. The Purchaser will immediately notify the Stockholder Representative in writing if any of the representations and warranties contained in Section 3 hereof become inaccurate in any indemnification hereunderrespect. Unless so notified, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share and the Company may rely on the representations and warranties contained in Section 3 hereof as being accurate and true in all respects as of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification date of the Shareholder Representative.
(d) All closing of the indemnities, immunities Exchange Transaction. The Purchaser hereby ratifies and powers granted confirms and agrees to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to ratify and confirm whatever any such Shareholder attorney as is mentioned in this Clause 5 shall do or purport to any other party with respect to do in the exercise or arising out purported exercise of any actions taken all or any inaction by of the Shareholder Representativepowers, authorities and discretions referred to therein.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Restricted Stock Purchase Agreement (Gourmet Herb Growers Inc)
Shareholder Representative. (a) The Shareholders parties agree that Xxxxxxx Xxx and Xxxx Xxxxxxxx are hereby appointed as the joint representative for and on behalf of the shareholders of HeritageBanc (such Persons, and any other Person duly appointed pursuant to appoint one Person to act this Agreement, serving as their such a representative, attorney the ”Shareholder Representative”) to take all actions necessary or appropriate in fact and proxy with respect to certain matters specified in the judgment of the Shareholder Representative for the accomplishment of the terms of this Agreement (upon and after the "Closing Date. Notwithstanding the initial appointment of two Persons as the Shareholder Representative"). The parties have designated Goelet, LLC there shall be no requirement that the Shareholder Representative be comprised of two Persons, and the holders of a majority of the shares of HeritageBanc Common Stock may replace or remove any Person serving as the initial Shareholder Representative upon not less than ten (10) days’ prior written notice to Old Second. If there are two Persons serving as the Shareholder Representative. The , the Shareholder Representative may resign at any timeact only with the concurrence of both such Persons and all writings to be signed by the Shareholder Representative must be executed by both such Persons. No bond shall be required of the Shareholder Representative, and a the Shareholder Representative may shall not be removed at entitled to receive any time by compensation for his or her services except as otherwise set forth in this Section 3.6. Notices of communications to or from the vote of Shareholders who collectively own more than 50% Shareholder Representative shall constitute notice to or from each of the Registrable Securities at such time (shareholders of HeritageBanc. If any Person serving as the "Majority Holders"). In the event of the death, resignation Shareholder Representative is no longer able or removal of willing to serve as the Shareholder Representative, a new Shareholder Representative shall may be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof chosen by the new Shareholder Representative. Any failure by the Majority Holders to appoint holders of a new Shareholder Representative upon the death, resignation or removal majority of the Shareholder Representative shall not have the effect shares of releasing the Shareholders from any liability under this AgreementHeritageBanc Common Stock.
(b) The Reasonable and necessary fees and expenses incurred by the Shareholder Representative Representative, in its capacity as Shareholder Representative, after the Closing Date shall have such powers and authority as are necessary to carry out the functions assigned be reimbursed to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf by Old Second promptly upon receipt of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice appropriate documentation of such Personsfees and expenses.
(c) The Shareholder Representative shall not be entitled liable for any act done or omitted in such capacity while acting in good faith, and any act done or omitted pursuant to any fee, commission or other compensation for the performance advice of its services hereunder, but counsel shall be entitled to the reimbursement by the Shareholders conclusive evidence of all his, her or its fees such good faith. The shareholders of HeritageBanc shall jointly and expenses incurred as severally indemnify the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreementand hold him or her harmless against any loss, liability or expense incurred without bad faith, gross negligence or willful misconduct 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of his or her duties. The Shareholder Representative may consult with legal counsel and other necessary experts to advise it with respect to its rights and obligations hereunder and shall be fully protected by any claimact taken, investigationsuffered, challengepermitted or omitted in good faith in accordance with the advice of such counsel or experts. Notwithstanding anything set forth in this subparagraph (c) and in subparagraph (b) above, action Old Second shall only be liable for fees and expenses of one legal counsel and one tax expert.
(d) Any decision, act, consent or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply after the Effective Time in the event of any action or proceeding which finally adjudicates the liability scope of the Shareholder Representative hereunder for his Representative’s authority as provided in the first sentence of Section 3.6(a)shall constitute a decision of all shareholders of HeritageBanc and shall be final, binding and conclusive upon every shareholder of HeritageBanc, and Old Second and the Surviving Corporation may rely upon any decision, act, consent or her gross negligence instruction (in each case whether given orally or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification writing) of the Shareholder Representative.
(de) All The adoption of this Agreement and the approval of the indemnities, immunities Merger and powers granted to the Contemplated Transactions by the shareholders of HeritageBanc shall constitute approval and ratification by such Persons of: (i) this Agreement and all of the arrangements relating thereto; (ii) the appointment of the Shareholder Representative under pursuant to this Agreement; and (iii) the performance of all duties described in this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder RepresentativeRepresentative on their behalf.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted provisions of this Section 3.6 are intended to be taken for the benefit of and shall be enforceable by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersOld Second.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact Each Principal Shareholder hereby irrevocably authorizes and proxy with respect to certain matters specified in this Agreement appoints Xxxxx Xxxxxxxxxx (the "Shareholder RepresentativeSHAREHOLDER REPRESENTATIVE"), with full power of substitution and resubstitution, as his or its representative and agent in connection with the Merger.
(b) Each Principal Shareholder agrees that the Shareholder Representative shall have the full power, authority and right to perform, do and take any and all actions he deems necessary or advisable to carry out the purposes of this Agreement and each Operative Document all without liability to such Principal Shareholder (except as expressly stated herein or therein), so long as same are carried out by the Shareholder Representative in good faith. The parties Such actions include the power to amend, modify or waive any agreement in the name of each Principal Shareholder as if such Principal Shareholder had himself or itself amended, modified or waived such agreement; provided that the Shareholder Representative shall have designated Goeletno power to alter any term of this Agreement which would reduce the amount or change the type of consideration to be received by any Shareholder in respect of the Merger unless a majority of the Shareholders shall so agree. In particular, LLC but not by way of limitation, the Shareholder Representative shall have the power to make and carry out decisions under this Agreement and the Operative Documents on behalf of each Principal Shareholder and to sign documents and make filings on behalf of each Principal Shareholder as the initial if such Principal Shareholder Representative. had himself or itself signed or filed such document.
(c) Each Principal Shareholder understands that this appointment is irrevocable.
(d) The Shareholder Representative may resign at any time. Upon such resignation, and a each Principal Shareholder hereby authorizes the Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the to replace such resigning Shareholder Representative shall not have with the effect of releasing the Shareholders from any liability under this Agreement.
(b) The same powers and duties as such resigning Shareholder Representative, provided that such newly appointed Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned been a Principal Shareholder immediately prior to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this AgreementEffective Time.
(e) Notwithstanding anything herein to If the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken Representative or any inaction by successor shall die, or become unable to act as the Shareholder Representative.
(f) The Company , a replacement shall promptly be appointed by a writing signed by the other Principal Shareholders, provided that such newly appointed Shareholder Representative shall have been a Principal Shareholder immediately prior to the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Shopnow Com Inc)
Shareholder Representative. (a) The Shareholders agree to hereby appoint one Person to act Xxxxxx Xxxxxx as their representative, attorney in agent and attorney-in-fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"), for and on behalf of the Shareholders, to give and receive notices and communications, to object to claims pursuant to Section 7.5, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and of arbitrators with respect to such objections, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign not be removed unless Shareholders that held at any time, least two-thirds of the Shares immediately prior to the Closing agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote of Shareholders who collectively own more than 50% that held a majority of the Registrable Securities at such time (Shares immediately prior to the "Majority Holders")Closing. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for his or her services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company shall have the right to rely conclusively upon all instructionsA decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant to this Agreement shall constitute a decision of the Shareholders and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally final, binding and conclusive upon all the Shareholders; and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. Purchaser is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement hereby select Richard J. Tehan (the "Shareholder Representative"). The parties have designated Goelet) to act for and xx xxxxxx xx xxl such Shareholders with respect to all matters arising in connection with Article 8 and the Escrow Agreement, LLC as including, without limitation, the initial Shareholder Representative. The Shareholder Representative power and authority, in his or her sole discretion, to:
(i) negotiate, determine, defend and settle any dispute which may resign at arise under Article 8 or the Escrow Agreement; and
(ii) make, execute, acknowledge and deliver any timereleases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and a Shareholder Representative to generally do any and all things and to take any and all actions which may be removed at any time by requisite, proper or advisable in connection with Article 7 or under the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Escrow Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to Shareholders by majority vote may replace the Shareholder Representative under this Agreement; provided, however, that at any time with a substitute Shareholder Representative who shall have all the powers and responsibilities of the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary set forth in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Personsthis Section 6.9.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against Neither the Shareholder Representative, of nor any nature whatsoeversubstitute Shareholder Representative, arising out of shall be liable to any Person for any action taken or any omission to act, in good faith, in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders Representative's responsibilities as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All Upon request by Parent, the Shareholder Representative, or any substitute Shareholder Representative, shall promptly provide Parent with a written certification of his or her selection and of the indemnities, immunities and powers granted address for notices to such Shareholder Representative. Parent may thereafter deal exclusively with the Shareholder Representative under in connection with the claims procedure in reliance on such certification. Whenever in connection with the provisions of this Agreement or the Escrow Agreement, Parent shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have receive any responsibility certificate or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by written correspondence from the Shareholder Representative.
(f) The Company , such certificate or other written correspondence shall have the right be full authorization to rely conclusively upon all instructions, requests, consents, elections and other actions Parent for any action taken or omitted to be taken suffered in good faith by it under the Shareholder Representative pursuant to provisions of this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersEscrow Agreement in reliance thereon.
Appears in 1 contract
Shareholder Representative. (a) The Shareholder Representative shall be constituted and appointed as agent and attorney-in-fact for and on behalf of the Seller and the Shareholders and shall have full power authority to represent, to give and receive notices and communications, to authorize the Escrow Agent to release any portion of the Indemnity Escrow Amount to Buyer in satisfaction of claims by Buyer or the Performance Escrow Amount as provided hereunder, to object to such deliveries, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain such claims, to act on the Seller’s and the Shareholders’ behalf with respect to the matters specified set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in Section 2.8 and Section 10 and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the interpretation of this Agreement (and accomplishment of the "Shareholder Representative")foregoing. The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative Such agency may be removed at any time changed by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such Escrow Amount from time to time upon not less than ten (the "Majority Holders")10) days’ prior written notice to Buyer. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment . Notices or communications to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of from the Shareholder Representative shall not have the effect constitute notice to or from each of releasing the Shareholders from any liability under this Agreementand the Seller.
(b) The Shareholder Representative shall have not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such powers good faith. The Seller and authority as are necessary to carry out the functions assigned to Shareholders shall severally indemnify and hold the Shareholder Representative under this Agreement; providedharmless against any loss, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on Representative and arising out of or in connection with the opinions and advice acceptance or administration of such Personshis, her or its duties hereunder.
(c) The Shareholder Representative shall not be entitled have reasonable access to any fee, commission or other compensation information about Company and the reasonable assistance of Company’s officers and employees for the performance purposes of performing its services duties and exercising its rights hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, provided that the Shareholder Representative shall incur no responsibility whatsoever treat confidentially and not disclose any nonpublic information from or about Company to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder or any anyone (except on a need to know basis to individuals who agree to treat such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, information confidentially).
(d) Buyer acknowledges that the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount may have a conflict of any judgment against the interest with respect to its duties as Shareholder Representative, and in such regard the Shareholder Representative has informed Buyer that it will act in the best interests of any nature whatsoeverthe Seller and the Shareholders.
(e) A decision, arising out of act, consent or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions instruction of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in constitute a decision of the event of Seller and all Shareholders for whom the Purchase Consideration otherwise payable to them is released to Buyer from the Indemnity Escrow Account or the Performance Escrow Account with respect to the matters set forth herein and shall be final, binding and conclusive upon the Seller and each Shareholder, and Buyer may rely upon any action decision, act, consent or proceeding which finally adjudicates the liability instruction of the Shareholder Representative hereunder for his as being the decision, act, consent or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share instruction of the amount of such deficiency, Seller and each and every Shareholder. Buyer is hereby relieved from any liability to any Person for any acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Rocket Lab USA, Inc.)
Shareholder Representative. (a) The Shareholders agree to appoint one Person to act as Selling Parties, by virtue of their representativeexecution and delivery of this Agreement or, attorney in fact and proxy with respect to certain matters specified in Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and the Merger by the Shareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, IBF (together with its permitted successors, the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any timetheir true and lawful agent and attorney-in-fact, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Registrable Securities at such time (the "Majority Holders"). In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative by its execution of this Agreement shall be appointed by a vote of Majority Holdersdeemed to have accepted such appointment, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from enter into any liability under this Agreement.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary agreement in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement transactions contemplated by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and any instrumentthe Deposit Escrow Agreement, agreement the Interim Escrow Agreement or document relating hereto or theretothe Escrow Agreement, and in exercising or failing to exercise all or any of the powers powers, authority and discretion conferred upon on it under any such agreement, to act as proxy for each Selling Party in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement (other than payment of the Merger Consideration due at Closing), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of and claim, action or proceeding for which any Shareholder, Purchaser, or the Merger Sub may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of stockholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company voting stock (considered on an as converted basis), or (ii) in the absence of its own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, its successor shall be named by those persons holding a majority of the shares of Company voting stock outstanding immediately prior to the Effective Time who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any actions taken by the Shareholder Representative in its capacity as such, the Shareholder Representative shall incur have no responsibility whatsoever liability to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder Purchaser, the Company or any such other agreement, instrument or document, excepting only responsibility of their respective affiliates except for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata claims based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' fraud or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any bad faith actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Concurrently with approving this Agreement and the Merger, the Shareholders agree to shall appoint one Person to act an individual or entity as their representativeagent and attorney-in-fact, attorney in fact as the shareholder representative for and proxy with respect to certain matters specified in this Agreement on behalf of the Shareholders (the "Shareholder Representative"), to give and receive notices and communications, to object to such retention, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder RepresentativeRepresentative may not be removed unless holders of a majority interest of the Shareholders agree to such removal and to the identity of the substituted agent. The Shareholder Representative may resign at any time, time upon written notice to Parent and a the Shareholders. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a simple majority interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount is contributed to the Escrow Fund shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action the acceptance or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification administration of the Shareholder Representative.
(d) All of 's duties hereunder, including the indemnities, immunities reasonable fees and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out expenses of any actions taken or any inaction legal counsel retained by the Shareholder Representative.
(fc) The Company A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall have constitute a decision of the right to Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent may rely conclusively upon all instructionsany such decision, requestsact, consents, elections and other actions taken consent or omitted to be taken by instruction of the Shareholder Representative pursuant as being the decision, act, consent or instruction of the Shareholders. The Parent is hereby relieved from any liability to this Agreement and any instrumentperson for
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, agreement or document relating hereto, all of which actions or omissions the Shareholder Representative shall be legally binding upon all entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Shareholders In the event the Merger is approved by the Shareholders, effective upon such vote, and without any further action of any Shareholder, Xxx Xxx Xxxx is constituted and appointed as Shareholder Representative for and on behalf of each Shareholder. Shareholder Representative shall be authorized on behalf of any Indemnifying Shareholder to give and receive notices and communications, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all actions necessary or appropriate in this Agreement (the "judgment of Shareholder Representative")Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any person under any circumstance. The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative such agency may be removed at any time changed by the vote of Shareholders who collectively own more than 50% approval of the Registrable Securities at such time (the "Majority Holders"). In the event holders of a majority-in-interest of the death, resignation or removal Company Shares immediately prior to the Effective Time. No bond shall be required of the Shareholder Representative, a new and Shareholder Representative shall not receive compensation for his or her services. Notice or communications to or from Shareholder Representative pursuant to Section 9.1 of this Agreement shall constitute notice to or from each of the Indemnifying Shareholders.
(b) A decision, act, consent or instruction of Shareholder Representative shall constitute a decision of all Indemnifying Shareholders and shall be appointed final, binding and conclusive upon each such Indemnifying Shareholder, and Purchaser may rely upon any decision, act, consent or instruction of Shareholder Representative as being the decision, act, consent or instruction of each and every such Indemnifying Shareholder. Purchaser is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of Shareholder Representative.
(c) Shareholder Representative has only the duties expressly stated in this Agreement and shall have no other duty, express or implied. Shareholder Representative is not, nor shall be deemed, a vote fiduciary of Majority Holdersthe Indemnifying Shareholders in any capacity or for any purpose. Shareholder Representative shall have no responsibility or liability for any representation, warranty or covenant of the Company, Purchaser or Merger Sub except, if applicable, solely in his or her capacity as an Indemnifying Shareholder. Shareholder Representative shall not be liable to any Indemnifying Shareholder for any act done or omitted hereunder as representative of the Indemnifying Shareholders while acting in good faith even though such appointment to become effective upon act or omission constitutes, or may constitute, negligence or gross negligence on the written acceptance thereof by the new part of such Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon shall, in no case or event, be liable to any Indemnifying Shareholder for punitive, incidental or consequential damages. Without limiting the deathgenerality of the foregoing, resignation or removal of the Shareholder Representative shall not have the effect of releasing the Shareholders from any liability under this Agreement.
(b) The be liable for forgeries or false impersonations by other parties. Shareholder Representative may engage attorneys, accountants and other professionals and experts. Shareholder Representative shall have not receive any compensation for his services in such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreementcapacity; provided, however, that the Shareholder Representative will have no obligation shall be entitled to act reimbursement from the Indemnifying Shareholders for his reasonable out-of-pocket expenses, including reasonable attorney's fees, incurred in performing his duties and functions. At the request of Shareholder Representative, such amounts shall be paid by the Purchaser, up to a maximum of Fifty Thousand Dollars ($50,000), on behalf of the ShareholdersIndemnifying Shareholders and immediately deducted, except on a pro-rata basis, from the principal amount of Notes. Notwithstanding anything contained in the immediately preceding sentence, any amounts owed by Purchaser to Shareholder Representative for his reasonable out-of-pocket expenses, including reasonable attorney's fees, incurred in performing his duties and functions shall be subordinated to Purchaser's right of set off pursuant to the terms of Section 8.6 hereof. Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company or another person, that were prepared or presented by (i) one or more officers or employees of the Company, or (ii) legal counsel, public accountants, investment bankers or other persons as expressly provided hereinto matters Shareholder Representative believes in good faith are within the person's knowledge, professional or expert competence. Any action taken by Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of such Shareholder Representative's duties. The Indemnifying Shareholders shall indemnify Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The and hold Shareholder Representative shallharmless from and against any loss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claimthe acceptance or administration of Shareholder Representative's duties hereunder, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to including the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event reasonable fees and expenses of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the legal counsel retained by Shareholder Representative.
(d) All Shareholder Representative shall have reasonable access to information about the Company, Purchaser and the Surviving Corporation and the reasonable assistance of the indemnitiesCompany's, immunities Purchaser's or the Surviving Corporation's officers and powers granted to the employees for purposes of performing his duties and exercising his rights hereunder, provided, however, that Shareholder Representative under this Agreement shall survive treat confidentially and not disclose any nonpublic information from or about the termination of this AgreementCompany, Purchaser or the Surviving Corporation to anyone (except on a need-to-know basis to individuals who agree to treat such information confidentially).
(e) Notwithstanding anything herein The parties acknowledge and agree that, notwithstanding the fact that Xxxxxxx Xxxxx LLP acted as special counsel to the contraryCompany (which effective as of the Closing shall be wholly owned by Purchaser in the form of the Surviving Corporation) in connection with the transactions contemplated by this Agreement, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever Xxxxxxx Xxxxx LLP shall, if so requested, be permitted to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by represent the Shareholder Representative.
(f) The Company shall have , the right to rely conclusively upon Shareholders and /or the Indemnifying Shareholders, and their respective heirs, executors, administrators, affiliates, successors and assigns, in connection with any and all instructionsmatters, requests, consents, elections and other actions taken negotiations and/or disputes which may arise out of or omitted to be taken by the Shareholder Representative pursuant to in connection with this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the ShareholdersContemplated Transactions.
Appears in 1 contract
Shareholder Representative. (a) The By virtue of the approval of the Merger and this Agreement by the Shareholders, each of the Shareholders agree shall be deemed to have agreed to appoint one Person Dxxxxx X. Xxxxx as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to act as their representativegive and receive notices and communications, attorney to authorize payment to any Indemnified Party from the Escrow Fund in fact satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the "judgment of the Shareholder Representative")Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The parties have designated GoeletSuch agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, LLC as however, that the initial Shareholder Representative. The Shareholder Representative may resign at any timenot be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, and a vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive any compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and authority as are necessary in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to carry out the functions assigned to Escrow Fund shall indemnify the Shareholder Representative under this Agreement; provided, however, that and hold the Shareholder Representative will have no obligation to act on behalf of the Shareholdersharmless against any loss, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Shareholder Representative shall, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of the Escrow Period, investigationthe resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, challenge, action or proceeding or in connection with the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any appeal thereof, relating distribution to the acts Shareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A decision, act, consent or omissions instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. The foregoing indemnification shall not apply in the event of Escrow Agent and Parent are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) The Each of the Shareholders hereby appoints Alaix Xxxxxxx, xxting on behalf of Sudinnova, its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders, to give and receive notices and communications, to authorize payment to Purchaser of shares of Purchaser Common Stock from the Escrow Fund in satisfaction of claims by Purchaser, to object to such payments, to agree to appoint one Person to act as their representativeto, attorney in fact negotiate, enter into settlements and proxy compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to certain matters specified such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement Agreement. Such agency may be changed by the Shareholders from time to time -42- 48 upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and a to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be removed at any time filled by the vote holders of Shareholders who collectively own more than 50% a majority in interest of the Registrable Securities at such time (the "Majority Holders")Escrow Fund. In the event of the death, resignation or removal No bond shall be required of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of and the Shareholder Representative shall not have receive compensation for its services. Notices or communications to or from the effect of releasing Shareholder Representative shall constitute notice to or from the Shareholders from any liability under this AgreementShareholders.
(b) The Shareholder Representative shall have such powers and authority not be liable for any act done or omitted hereunder as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement; provided, however, that while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative will have no obligation to act on behalf of and hold the Shareholders, except as expressly provided herein. The Shareholder Representative will at all times be entitled to rely on harmless against any directions received from the Majority Holders. The Shareholder Representative shallloss, at the liability or expense of the Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of incurred without negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such Persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the reimbursement by the Shareholders of all his, her or its fees and expenses incurred as the Shareholder Representative pursuant to Section 4.2 hereof. 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 Shareholder Representative hereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder 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 willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any claimlegal counsel retained by the Shareholder Representative. After all claims for Losses by Purchaser set forth in Officer's Certificates delivered to the Escrow Agent and the Shareholder Representative has been satisfied, investigationor reserved against, challengethe Shareholder Representative, action or proceeding or with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Shareholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may rely upon any appeal thereofsuch decision, relating to the acts act, consent or omissions instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. The foregoing indemnification shall not apply in the event of Escrow Agent and Purchaser are hereby relieved from any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder to any person for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, acts done by them in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement decision, act, consent or indemnification instruction of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each Shareholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Shareholder or to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Shareholders.
Appears in 1 contract
