Shareholder Representative. By the execution and delivery of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, as the true and lawful agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to: (a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders; (b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders; (c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel; (d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose; (e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and (f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative. (g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Shareholder Representative. By Each Company Shareholder does hereby make, constitute and appoint the execution and delivery of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, Shareholder Representative as the its true and lawful agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers power of substitution to act substitution, for and in the its name, place stead and stead of such shareholder behalf, to: prepare, make, sign, initial, acknowledge and deliver from time to time any and all documents, certificates and instruments, including, without limitation, amendments to this Agreement and any other agreements ancillary or related to this Agreement (collectively with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement “Basic Documents”) and the Indemnification Escrow Agreement (the "Shareholder Documents")other agreements, as the same may be from time to time amendedconsents, amendments, certificates, and to do or refrain from doing all such further acts and thingsstock powers, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any the consummation of the transactions contemplated under this Shareholder in the Basic Documents, including, without limitation, and generally to perform all acts and to do all things necessary or appropriate in discharge of the power to:
hereby conferred, including the making of affidavits and the acknowledging of documents, as if fully done by the undersigned, and the Shareholder Representative hereby is further authorized and empowered in the discharge of the power hereby conferred to sign any documents by means of either a manual, imprinted or other facsimile signature or by completing a printed form to which an imprinted or other facsimile signature is then affixed; to execute and deliver such other instruments, certificates and documents, make such filings, and take such other actions as are in the Shareholder Representative’s judgment necessary or appropriate to consummate the transactions contemplated in the Basic Documents; and to otherwise possess such other powers as are reasonably incidental to such powers. The Shareholder Representative (which term as used in this sentence and elsewhere in this Agreement shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents): (a) act shall have no duties or responsibilities except those required to consummation of the transactions contemplated in the Basic Documents, and shall not by reason of any Basic Document be a trustee for any Company Shareholder; (b) shall not be responsible to the Company Shareholders for any recitals, statements, representations or warranties contained in any Basic Document, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or any other Basic Document, or for the shareholders value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Basic Document or any other document referred to or provided for in any Basic Document or for any failure by any Company Shareholder, the Company, Parent or any other person to perform any of its obligations under any Basic Document; (c) shall not be required to initiate or conduct any litigation or collection proceedings under any Basic Document; and (d) shall not be responsible for any action taken or omitted to be taken by it under any Basic Document or under any other document or instrument referred to or provided for in any Basic Document or in connection with any Basic Document, except for its own gross negligence or willful misconduct. The Shareholder Representative may employ agents and attorneys in fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys in fact selected by it in good faith. The Shareholder Representative may deem and treat the person named as holder on any certificate representing Company Shares as the record and beneficial holder of such Company Shares for all purposes of the Basic Documents unless and until a notice of the assignment or transfer of such Company Shares shall have been filed with the Shareholder Representative. With respect to its rights and obligations as a Company Shareholder under this Agreement, in its capacity as a Company Shareholder under the Basic Documents, and with respect to all matters referred to in the Shareholder Documentsits rights, including all adjustments to the Aggregate Merger Consideration obligations and all indemnification matters set forth herein and the right to compromise opportunities as a director, officer, employee or settle any such claims on behalf other agent of the shareholders;
(b) amend Company, any Subsidiary, Parent or waive any provision subsidiary of Parent, Shareholder Representative shall have the same rights, privileges and powers under the Basic Documents as any other Company Shareholder Documents (including and shall have the same rights, privileges and powers under any condition to Closing) in other agreement as any manner which does person not differentiate among a Company Shareholder and Shareholder Representative may exercise the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors same as though it were not acting as the Shareholder Representative, and the term “Company Shareholder” shall, unless the context otherwise indicates, include the Shareholder Representative in his its individual capacity. Without limitation on the foregoing, Shareholder Representative (and any successor) and its affiliates may (without having to account for the same to any Company Shareholder) engage in any kind of business with the Company, any Subsidiary, Parent, any subsidiary or her sole discretionaffiliate of Parent (and any of their affiliates or associates) as if it were not acting as a Company or Subsidiary director, deems necessary officer or advisable manager or the Shareholder Representative, and Shareholder Representative and its affiliates may accept fees and other consideration from the Company, any Subsidiary, Parent, any subsidiary or affiliate of Parent (and any of their affiliates or associates) for services in connection with this Agreement or otherwise without having to account for the performance of his or her duties as same to any Company Shareholder. Each Company Shareholder agrees to indemnify the Shareholder Representative and rely on its affiliates, directors, officers, employees, attorneys and agents ratably in accordance with their advice respective holdings of Company Shares, for any and counsel;
(d) incur all losses, liabilities, damages or expenses incurred by any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent them in connection with or by reason of any amount which actual or threatened investigation, litigation or other proceedings (including any such investigation, litigation or other proceedings between the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(eany Company Shareholder) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter sale of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocableCompany Shares under, and any other person may conclusively and absolutely relythe transactions contemplated by, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Basic Documents, including the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faithproceedings.
Appears in 1 contract
Samples: Acquisition Agreement (VRDT Corp)
Shareholder Representative. By the execution and delivery of this Agreement, including counterparts hereof, each shareholder Shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx Eugexx X. XxxxxXxxx (xxe "Shareholder Representative"), as the true and lawful agent and attorney-in-fact (the "Shareholder Representative") of such shareholder Shareholder with full powers of substitution to act in the name, place and stead of such shareholder Shareholder with respect to the performance on behalf transfer of such shareholder under Shareholder's Shares to Purchaser in accordance with the terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documentshereby, including, without limitation, including the power topower:
(ai) to receive, hold, and deliver to Purchaser the certificates evidencing the Shares accompanied by executed stock powers, signature guarantees, and any other documents relating thereto on behalf of Shareholders, including the power to endorse and present any such certificate or stock power on behalf of any Shareholder;
(ii) to execute and deliver all ancillary agreements, certificates, and documents which the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated hereby;
(iii) to receive and receipt for all payments made by Purchaser to Shareholders under this Agreement;
(iv) to act for the shareholders Shareholders with respect to all indemnification matters referred to in the Shareholder Documentsthis Agreement, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholdersShareholders any indemnification claim made by or against Shareholders;
(bv) amend to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of Shareholders in the reasonable judgment of the Shareholder Documents (including Representative, shall be taken in the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder who is subject to any condition to Closing) in any manner which does not differentiate among the shareholdersdisparate treatment of a potentially adverse nature;
(cvi) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and to rely on their advice and counsel;
(dvii) to incur expenses of sale, including fees of brokers, attorneys and accountants incurred pursuant to the transfer of the Shares, and any expensesother fees and expenses allocable or in any way relating to such transaction or any indemnification claim, liquidate and whether incurred prior or subsequent to Closing (all of which are hereinafter referred to as "Transaction Expenses"), to withhold assets from funds received on behalf of the shareholders Shareholders prior to their distribution to the shareholders to the extent of Shareholders any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expensesTransaction Expenses, and to pay such fees and expenses or to deposit the same in an interest-bearing a bank account established for such purpose;
(eviii) receive all notices, communications and deliveries hereunder to pay from funds received on behalf of Shareholders, prior to their distribution, the shareholders under the Shareholder DocumentsTransaction Expenses; and
(fix) to do or refrain from doing any further act or deed on behalf of the shareholders Shareholders which the Shareholder Representative deems necessary or appropriate, appropriate in his or her sole discretion, discretion relating to the subject matter of the Shareholder Documents this Agreement as fully and completely as any of the shareholders Shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) acting. The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and the Purchaser and any other person Person may conclusively and absolutely rely, without inquiry, upon any actions action of the Shareholder Representative as the acts act of the shareholders Shareholders in all matters referred to in the Shareholder Documentsthis Agreement or any other document contemplated hereby. Each shareholder of Shareholders hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's his appointment as Shareholder Representative of such shareholderShareholder. The Shareholder Representative shall act for the shareholders Shareholders on all of the matters set forth in the Shareholder Documents this Agreement in the manner the Shareholder Representative believes to be in the best interest of Shareholders and consistent with their obligations under this Agreement and the shareholdersWaldorf Ancillary Documents, but the Shareholder Representative shall not be responsible to any shareholder Shareholder for any loss or damage any shareholder Shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's his duties under the Shareholder Documentsthis Agreement, other than loss or damage arising from willful misconduct violation of law or bad faith gross negligence in the performance of such Shareholder Representative's his duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faiththis Agreement.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the execution approval of the Merger and delivery this Agreement by the requisite vote of this Agreementthe Shareholders, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, of the Shareholders shall be deemed to have agreed to appoint Magnum Communications Fund L.P. as the true and lawful its agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 documentsfact, as the Shareholder Representative shall deem for and on behalf of the Shareholders (i) to give and receive notices and communications, to authorize payment to any Indemnified Party directly against the Shareholders in satisfaction of claims by any Indemnified Party, 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 such claims, to negotiate, investigate and resolve all matters relating to ARTICLE VIII and ARTICLE IX hereof, 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, (ii) to agree to, negotiate, execute and distribute the Earnout Warrants and deliver the Earnout Warrants to the Shareholders as provided therein, to fulfill all of its obligations thereunder and resolve all matters relating thereto, act on behalf of the Shareholders in connection therewith, and (iii) to take all other actions that are either (A) necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment judgment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions for the accomplishment of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do foregoing or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance (B) specifically mandated by the Shareholder Representative terms of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documentsthis Agreement. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall Such agency may be entitled to rely on any and all action taken changed by the Shareholder Representative under the Shareholder Documents without liability to, or obligation Shareholders from time to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases time upon not less than thirty (30) days prior written notice to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless Shareholders holding a majority of Company Shares agree to such removal and to the identity of the substituted agent. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly and severally agree to Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and arising out of such or in connection with the acceptance or administration of the Shareholder Representative's duties under hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Documents except Representative ("SHAREHOLDER REPRESENTATIVE EXPENSES"). A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, 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 as being the decision, act, consent or instruction of the Shareholders. Parent is hereby relieved from any liability to any person for willful misconduct any acts done by it in accordance with such decision, act, consent or bad faithinstruction of the Shareholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Scansoft Inc)
Shareholder Representative. By (a) Each Target Shareholder, by the execution and delivery of this Agreement, each shareholder hereby irrevocably constitutes consents and appoints Summit Ventures V, L.P., Attn: agrees to the appointment of Xxxx X. Xxxxxx X. Xxxxx, as the true and lawful agent and attorney-in-fact (the "“Shareholder Representative") ” for purposes of such shareholder with full powers of substitution all matters expressly set forth in this Agreement and the Escrow Agreement to act in be performed by the name, place and stead of such shareholder with respect Shareholder Representative. As to the performance on behalf of such shareholder under terms and provisions of any matter not expressly provided for by this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible 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 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 the Target Common Stock immediately prior to the Effective Time designating a new Shareholder Representative that is reasonably acceptable to Acquiror.
(b) 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 (i) enforce this Agreement and the Escrow Agreement against the parties hereto, (ii) execute any amendment or waiver of this Agreement or the Escrow Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement or the Escrow Agreement, (iii) give and receive notices and communications and, without limiting the foregoing provisions of this Section 9.11, dispute any decision of Acquiror to pay itself or any Indemnitee hereunder, (iv) agree to, negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any shareholder dispute or loss, (v) to make an election with respect to the allocation of any Earn-Out Payment between cash and Acquiror Common Stock pursuant to Section 1.6(f)(iv)(A) and (v) to take all actions necessary or appropriate on behalf of the Target Shareholders or itself 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 Escrow Amount or Aggregate Earn-Out Consideration to Acquiror. The Target Shareholders 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.
(c) All decisions of the Shareholder Representative, including any election made by the Shareholder Representative with respect to the allocation of an Earn-Out Payment between cash and Acquiror Common Stock pursuant to Section 1.6(f)(iv)(A), may be relied upon by Acquiror and any third person, and shall be binding and conclusive upon each Target Shareholder.
(d) The Shareholder Representative shall not be liable, responsible or accountable in damages or otherwise to the Target Shareholders for any loss or damage any shareholder may suffer incurred by reason of the performance any act or failure to act by such Shareholder Representative, and each Target Shareholder shall indemnify and hold harmless the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than against any loss or damage arising from except to the extent that such loss or damage shall have been the result of the individual gross negligence or willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Shareholder Representative. By the execution (a) The Company and delivery of this Agreement, Shareholder Representative represent to Acquiror that each shareholder hereby Shareholder has irrevocably constitutes constituted and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, appointed Xxxxx Xxxxxxxx as the true and lawful agent and such Shareholder’s attorney-in-fact (and agent in connection with the "Shareholder Representative") execution and performance of its duties under this Agreement. This power is irrevocable and coupled with an interest, and shall not be affected by the death, incapacity, illness, dissolution or other inability to act of such shareholder with Shareholder.
(b) The Company and Shareholder Representative represent to Acquiror that each Shareholder has irrevocably granted the Shareholder Representative full powers of substitution power and authority: (i) to act in the nameexecute and deliver, place and stead of such shareholder with respect to the performance on behalf of such shareholder Shareholder, and to accept delivery of, on behalf of such Shareholder, the Ancillary Agreements and such other documents as may be deemed by the Shareholder Representative, in its sole discretion, to be appropriate to complete the Transactions; (ii) to endorse and to deliver on behalf of such Shareholder, transfer instruments representing the shares of Company Common Stock to be exchanged by such Shareholder at the Closing; (iii) to acknowledge receipt at the Closing of the consideration payable to such Shareholder at the Closing, and to designate the manner of payment of such consideration; (iv) to (A) negotiate and compromise, on behalf of such Shareholder, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (B) execute, on behalf of such Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; (v) to give or agree to, on behalf of such Shareholder, any and all consents, waivers, amendments or modifications, deemed by the Shareholder Representative, in its sole discretion, to be necessary or appropriate, under terms and provisions of this Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith; (vi) to enforce, on behalf of such Shareholder, any claim against Acquiror arising under this Agreement; (vii) to engage attorneys, accountants and agents at the Working Capital Escrow Agreement and the Indemnification Escrow expense of such Shareholder; (viii) to agree, on behalf of such Shareholder, to amend this Agreement (other than this Section 10.02) or any of the "instruments to be delivered to Acquiror by such Shareholder Documents"), as the same may be from time pursuant to time amended, this Agreement; and (ix) to give such instructions and to do take such action or refrain from doing all taking such further acts and thingsaction, and to execute all on behalf of such documentsShareholder, as the Shareholder Representative shall deem deems, in its sole discretion, necessary or appropriate in connection with any to carry out the provisions of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;Agreement.
(c) employ The Company and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior represent to their distribution Acquiror that each Shareholder has agreed to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
following: (ei) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance which action by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documentsis required or permitted, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders Shareholder, notwithstanding any dispute or disagreement among between such Shareholder and the shareholdersShareholder Representative, and that any person shall Acquiror will be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents this Agreement without any liability to, or obligation to inquire of, any Shareholder, notwithstanding any knowledge on the part of Acquiror of any such dispute or disagreement; (ii) notice to the Shareholder Representative, delivered in the manner provided in Section 10.01, shall also be deemed to be notice to such Shareholder for purposes of this Agreement; and (iii) the power and authority of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly , as described in this Agreement, will continue in force until all rights and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance obligations of such Shareholder Representative's duties under this Agreement will have terminated, expired or been fully performed.
(d) The Company and Shareholder Representative represent to Acquiror that each Shareholder has agreed that, notwithstanding the foregoing, at the request of Acquiror, such Shareholder Documents except for willful misconduct shall take all actions necessary or bad faithappropriate to complete the Transactions (including, with respect to such Shareholder, delivery of the shares of Company Common Stock and acceptance of the Merger Consideration therefor) individually on such Shareholder’s own behalf, and to deliver any other documents required of such Shareholder pursuant to the terms hereof.
Appears in 1 contract
Samples: Business Combination Agreement (Fintech Ecosystem Development Corp.)
Shareholder Representative. By the execution and delivery of this Agreement, each shareholder of the Selling Shareholders hereby irrevocably constitutes and appoints Summit Ventures VR. Xxxxxxx Xxxxxxx (and by his execution of this Agreement, L.P., Attn: Xxxxxx X. Xxxxx, R. Xxxxxxx Xxxxxxx hereby accepts his appointment) as the true and lawful agent and attorney-in-fact (the "“Shareholder Representative"”) of such shareholder with full powers of substitution the Selling Shareholders to act in the name, place and stead of such shareholder the Selling Shareholders in connection with respect the transactions contemplated by this Agreement (other than any retention agreements between Buyer and any Selling Shareholder), and to the performance act on behalf of such shareholder under terms the Selling Shareholders in any litigation or arbitration involving this Agreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"any Selling Shareholder), 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, documents as the Shareholder Representative shall deem necessary or appropriate appropriate, in connection with any of the transactions contemplated under by this Shareholder DocumentsAgreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), including, without limitation, the power topower:
(a) to act for the shareholders Selling Shareholders with respect regard to all matters referred to in the Shareholder Documents, including all adjustments pertaining to the Aggregate Merger Consideration and all indemnification matters set forth herein Post-Closing Adjustment Statement and the right to compromise or settle any such claims on behalf of the shareholdersPost-Closing Adjustment;
(b) amend or waive to act for the Selling Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any provision indemnity claim on behalf of the Shareholder Documents (including any condition Selling Shareholders and to Closing) in any manner which does not differentiate among the shareholderstransact matters of litigation;
(c) employ to execute and obtain the advice of legal counseldeliver all amendments, accountants waivers, ancillary agreements, stock powers, certificates and other professional advisors as documents that the Shareholder Representative, in his or her sole discretion, Representative deems necessary or advisable appropriate in connection with the performance consummation of his or her duties as the Shareholder Representative and rely on their advice and counseltransactions contemplated by this Agreement;
(d) incur any expenses, liquidate to execute and withhold assets received on behalf of the shareholders prior deliver all amendments and waivers to their distribution to the shareholders to the extent of any amount which this Agreement that the Shareholder Representative deems necessary for payment of or as a reserve against expensesappropriate, and pay such expenses whether prior to, at or deposit after the same in an interest-bearing bank account established for such purposeClosing;
(e) to receive all notices, communications and deliveries hereunder on behalf funds for the payment of expenses of the shareholders under the Shareholder Documents; andSelling Shareholders and apply such funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the shareholders which Selling Shareholders that the Shareholder Representative deems necessary or appropriate, appropriate in his or her sole discretion, discretion relating to the subject matter of the Shareholder Documents this Agreement as fully and completely as any of the shareholders Selling Shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.present; and
(g) The appointment to receive notices and service of process in connection with any claims under this Agreement.
(h) Buyer, Merger Sub, the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, Surviving Corporation and any other person Person may conclusively and absolutely rely, without inquiry, upon any actions action of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documentsherein. Each shareholder The Selling Shareholders hereby ratifies and confirms confirm all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's her appointment as the Shareholder Representative of such shareholderthe Selling Shareholders. The Shareholder Representative shall act for the shareholders Selling Shareholders on all of the matters set forth in the Shareholder Documents this Agreement in the manner the Shareholder Representative believes to be in the best interest of the shareholdersSelling Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to any shareholder the Selling Shareholders for any loss or damage any shareholder damages the Selling Shareholders may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's her duties under the Shareholder Documentsthis Agreement, other than loss or damage arising from willful misconduct violation of the law or bad faith gross negligence in the performance of such her duties under this Agreement.
(i) Upon the Closing, the Company shall wire $500,000 (the “Expense Fund”) to an account designated by the Shareholder Representative's duties under , which will be used for the Shareholder Documents. Each purposes of the shareholders hereby expressly acknowledges and agrees that paying directly, or reimbursing the Shareholder Representative is authorized for, any third party expenses pursuant to act this Agreement and the other Transaction Documents or for satisfying certain Claims pursuant to Section 8.4(f). The Selling Shareholders will not receive any interest or earnings on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, Expense Fund and that any person shall be entitled irrevocably transfer and assign to rely on any and all action taken by the Shareholder Representative under 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 Fund other than as a result of its gross negligence or willful misconduct. The Shareholder Representative will hold these funds separate from its unrelated funds, will not use these funds for any unrelated 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 Documents without liability toRepresentative’s responsibilities, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns will deliver any remaining balance of the Expense Fund to the Selling Shareholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Selling Shareholders at the time of Closing.
(j) The initial Shareholder Representative shall appoint his or ceases her successor Shareholder Representative, or if the initial Shareholder Representative dies or becomes disabled (such that he or she cannot perform his or her duties as Shareholder Representative or to function in such capacity for any reason whatsoever, appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be the person which the shareholders appoint; providedCohiba Retained Assets, however, LLC. If any successor Shareholder Representative dies or becomes disabled (such that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right he or she could - 68 - not perform his or her duties as Shareholder Representative or to petition a court of competent jurisdiction for appointment of appoint a successor Shareholder Representative. The shareholders do hereby jointly and severally agree ) or is otherwise unable or unwilling to indemnify and hold appoint a successor then the successor Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as shall be elected by a result vote of a majority of the performance shares of such Shareholder Representative's duties under Capital Stock then held by the Shareholder Documents except for willful misconduct Selling Shareholders (or bad faithby the estate of a deceased Selling Shareholder).
Appears in 1 contract
Shareholder Representative. (a) By virtue of the execution approval of the First Step Merger and delivery of this AgreementAgreement by the Indemnifying Parties, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, of the Indemnifying Parties shall be deemed to have agreed to appoint Shareholder Representative Services LLC as the true and lawful its agent and attorney-in-fact (fact, as the "Shareholder Representative") of such shareholder Representative with full powers of substitution power and authority to act for and on behalf of the Indemnifying Parties to give and receive notices and communications, to direct the Escrow Agent to cause to be sold all of the shares of Parent Common Stock in the nameEscrow Fund and the Expense Escrow Fund pursuant to Section 8.7(c), place to authorize payment to any Indemnified Party or Parties from the Escrow Fund in satisfaction of claims by such Indemnified Party or Parties pursuant to Section 8.2(a), to object to such payments, to agree to, negotiate, enter into settlements and stead compromises of, and request mediation as provided in this Agreement and comply with orders of such shareholder courts and awards of mediators with respect to the performance on behalf of such shareholder under terms claims, to assert, negotiate, enter into settlements and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same may be from time to time amendedcompromises of, and request mediation and comply with orders of courts and awards of mediators with respect to, any other claim by any Indemnified Party or Parties against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or Parties or any dispute between any Indemnified Party or Parties and any such Indemnifying Party, to do or refrain from doing authorize the sale of all such further acts of the shares of Parent Common Stock in the Escrow Fund and thingsdeliver an Escrow Sale Instruction Letter to the Escrow Agent pursuant to Section 8.7(c)(i), and to execute all such documentsdocuments necessary or appropriate in the sole opinion of the Shareholder Representative for the accomplishment of the foregoing, 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 for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The Shareholder Representative may resign at any time. Such agency may be changed by the Indemnifying Parties 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 of the outstanding shares of Company Capital Stock as of immediately prior to the Effective Time agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the vote of holders of a majority of the outstanding shares of Company Capital Stock as of immediately prior to the Effective Time. No bond shall be required of the Shareholder Representative. After the Closing, notices or communications to or from the Shareholder Representative shall deem necessary constitute notice to or appropriate from the Indemnifying Parties.
(b) The Expense Escrow Amount (collectively, with any interest accrued thereon, the “Expense Escrow Fund”) shall be available to pay directly, or reimburse the Shareholder Representative for, Shareholder Representative Expenses (as defined in Section 8.8(c) below) that are incurred without gross negligence or bad faith on the part of the Shareholder Representative and that arise out of or in connection with any the acceptance or administration of the transactions contemplated Shareholder Representative’s duties hereunder. From time to time prior to the end of the Escrow Period, the Shareholder Representative may deliver a written certificate (a “Shareholder Representative Certificate”), signed by the Shareholder Representative, to the Escrow Agent (A) stating that the Shareholder Representative is entitled to be paid, or to be reimbursed, from amounts then available in the Expense Escrow Fund the aggregate amount of the Shareholder Representative Expenses incurred by the Shareholder Representative that are set forth in the Shareholder Representative Certificate, and (B) certifying that all such Shareholder Representative Expenses set forth in such Shareholder Representative Certificate were reasonably and actually incurred by the Shareholder Representative in connection with the administration of its duties and the fulfillment of its obligations under this Agreement. Each Shareholder Documents, including, without limitationRepresentative Certificate delivered by the Shareholder Representative to the Escrow Agent pursuant to this Section 8.8(b) shall contain a reasonably detailed description of all Shareholder Representative Expenses for which payment or reimbursement is sought by the Shareholder Representative. The Escrow Agent shall not be responsible for making any assessments of any Shareholder Representative Certificate and shall be entitled to rely conclusively upon its contents. Provided the Shareholder Representative Certificate delivered by the Shareholder Representative complies with the requirements set out in this Section 8.8(b), the power to:Escrow Agent shall promptly distribute to or as directed by the Shareholder Representative, to the extent such amount is then available in the Expense Escrow Fund, the aggregate amount of the Shareholder Representative Expenses set forth in such Shareholder Representative Certificate.
(ac) The Shareholder Representative shall not be liable for any act for done or omitted hereunder as Shareholder Representative while acting in good faith and without gross negligence or willful misconduct. The Indemnifying Parties shall indemnify the shareholders Shareholder Representative and hold the Shareholder Representative harmless against any losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs or expenses (including the fees and expenses of counsel and experts and all expenses with respect to all matters referred to document location, duplication and shipment) 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 legal counsel retained by the Shareholder Representative (collectively, “Shareholder Representative Expenses”), in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any such Shareholder DocumentsRepresentative Expense is finally adjudicated to have been directly caused by the bad faith, including all adjustments gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Shareholder Representative Expenses to the Aggregate Merger Consideration extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Shareholder Representative by the Indemnifying Parties, any such Shareholder Representative Expenses shall be recovered by the Shareholder Representative from (i) funds in the Expense Escrow Fund and (ii) to the extent the funds in the Expense Escrow Fund are insufficient, if then available after satisfaction of all indemnification matters set forth herein claims of an Indemnified Party or Parties, the amounts in the Escrow Fund prior to any distribution thereof to the Indemnifying Parties; provided, that while this section allows the Shareholder Representative to be paid from the Expense Escrow Fund and the right Escrow Fund, this does not relieve the Indemnifying Parties from their obligation to compromise promptly pay such Shareholder Representative Expenses as they are suffered or settle incurred, nor does it prevent the Shareholder Representative from seeking any such claims 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;
(b) amend Indemnifying Parties or waive any provision otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among Representative or the shareholders;
(c) employ and obtain the advice termination of legal counselthis Agreement. A decision, accountants and other professional advisors as act, consent or instruction of the Shareholder Representative, in his including an amendment, extension or her sole discretionwaiver of this Agreement pursuant to Section 9.3 and Section 9.4, deems necessary 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 decision, act, consent or advisable in the performance instruction of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expensesas being the decision, liquidate and withhold assets received on behalf act, consent or instruction of the shareholders prior Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to their distribution to the shareholders to the extent any person for any acts done by them in accordance with such decision, act, consent or instruction of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(gd) The appointment After the completion of the Shareholder Representative’s responsibilities, the Shareholder Representative shall be deemed coupled instruct the Escrow Agent to distribute any cash remaining in the Expense Escrow Fund to the Indemnifying Parties in accordance with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions such Indemnifying Parties’ respective Pro Rata Portions of the Shareholder Representative as the acts of the shareholders in all matters referred to remaining amounts in the Shareholder Documents. Each shareholder hereby ratifies Escrow Fund, with the amount delivered to each Indemnifying Party rounded to the nearest one hundredth (0.01) (with amounts 0.005 and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faithabove rounded up).
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
Shareholder Representative. (i) By virtue of the execution approval of the Merger and delivery of this AgreementAgreement by the Requisite Stockholder Approval, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxxof the Stockholders shall be deemed to have agreed to appoint Jxxxxx Xxxxxxxx, as the true and lawful its agent and attorney-in-fact (fact, as the "“Shareholder Representative") ” for and on behalf of the Stockholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Buyer Indemnified Party from the Escrow Fund in satisfaction of claims by any Buyer Indemnified Party, to object to such shareholder payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full powers orders of substitution to act in the name, place courts and stead awards of such shareholder arbitrators with respect to 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 Buyer Indemnified Party against any Stockholder or In the performance on behalf Money Optionholder or by any such Stockholder or In the Money Optionholder against any Buyer Indemnified Party or any dispute between any Buyer Indemnified Party and any such Stockholder or In the Money Optionholder, 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 for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Buyer Indemnified Parties; provided, however, that the Shareholder Representative may not be removed unless holders of seventy-five percent (75%) interest of the Escrow Fund agree to such shareholder under removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Stockholders and In the Money Optionholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement, the Working Capital Escrow Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(ii) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the Indemnification Escrow Agreement (exercise of reasonable judgment. The Stockholders and In the "Shareholder Documents"), 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 Money Optionholders shall indemnify the Shareholder Representative shall deem necessary and hold the Shareholder Representative harmless against any loss, liability or appropriate expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise acceptance or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision administration of the Shareholder Documents Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders and In the Money Optionholders and shall be final, binding and conclusive upon the Stockholders and In the Money Optionholders; and the Escrow Agent and Buyer may rely upon any condition to Closing) such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Stockholders and In the Money Optionholders. The Shareholder Representative may in any manner which does not differentiate among the shareholders;
(c) employ and obtain the all questions arising under this Agreement seek advice of legal counsel, accountants and other professional advisors as the Shareholder Representativefor anything done, omitted or suffered in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as good faith by the Shareholder Representative and rely on their advice and counsel;
(d) incur any expensesin accordance with such advice, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible liable to any shareholder Stockholder or In the Money Optionholder. The Escrow Agent and Buyer Indemnified Parties are hereby relieved from any liability to any person for any loss decision, act, consent or damage any shareholder may suffer by reason instruction of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Samples: Merger Agreement (Stericycle Inc)
Shareholder Representative. (a) By virtue of the execution approval of the Merger and delivery this Agreement by the requisite vote of this Agreementthe Shareholders, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, of the Shareholders shall be deemed to have agreed to appoint TCB as the true and lawful its agent and attorney-in-fact (fact, as the "Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative") . The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving 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 shareholder payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full powers orders of substitution to act in the name, place courts and stead awards of such shareholder arbitrators with respect to 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 performance on behalf transactions contemplated hereby, 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. Such agency may be changed 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 two-thirds (2/3) interest of the Escrow Fund agree to such shareholder under removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "to consent to any amendment hereof thereof in its capacity as Shareholder Documents"), 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 Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;Representative.
(b) amend The Shareholder Representative shall not be liable for any act done or waive omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any provision loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Documents Representative and 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 legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, 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 condition to Closing) such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in any manner which does not differentiate among the shareholders;
(c) employ and obtain the all questions arising under this Agreement seek advice of legal counsel, accountants and other professional advisors as the Shareholder Representativefor anything done, omitted or suffered in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as good faith by the Shareholder Representative and rely on their advice and counsel;
(d) incur any expensesin accordance with such advice, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible liable to any shareholder Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any loss decision, act, consent or damage any shareholder may suffer by reason instruction of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Shareholder Representative. By (a) Each of the execution and delivery of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, Shareholders agree to appoint Xxxxxxx Xxxxxxx as the true and lawful its agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 documentsfact, as the Shareholder Representative shall deem for and on behalf of such 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, 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, 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 such 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, the Escrow Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment judgment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions for the accomplishment of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do foregoing or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance (ii) specifically mandated by the Shareholder Representative terms of this Agreement. Such agency may be changed by such shareholder Representative's duties under the Shareholder Documents, other Shareholders from time to time upon not less than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized 30 days prior written notice to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointPurchaser; provided, however, that if the Shareholder Representative may not 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, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly and severally agree Shareholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and arising out of such or in connection with the acceptance or administration of the Shareholder Representative's ’s duties under hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Documents except Representative (“Shareholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for willful misconduct Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Shareholders. A decision, act, consent or bad faithinstruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 and Section 10.3 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 as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Purchaser 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. By the execution (a) Each Shareholder, for itself or himself and delivery of this Agreementfor its or his successors and assigns, each shareholder hereby irrevocably makes, constitutes and appoints Summit Ventures VXxxx Xxxxx, L.P., Attn: Xxxxxx X. Xxxxxin his capacity as Shareholder Representative, as the true sole and lawful agent and exclusive agent, attorney-in-fact (the "Shareholder Representative") and representative of such shareholder with full powers of substitution Shareholder, to act in the name, place for and stead on behalf of such shareholder Shareholder with respect to the performance matters set forth in this Section 11.17, and the Shareholder Representative hereby accepts such appointment. Each Shareholder acknowledges that the appointment of the Shareholder Representative is coupled with an interest and may not be revoked. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholder Representative consistent with this Section 11.17, shall be absolutely and irrevocably binding on behalf each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination.
(b) In furtherance of the appointment of the Shareholder Representative, each Shareholder, fully and without restriction (in each case, other than in the case of any Ancillary Documents solely between a particular Shareholder and a third party, for which such shareholder Shareholder will retain all rights and obligations, including notice), (i) agrees to be bound by all notices given and received and agreements and determinations made by and documents executed and delivered by the Shareholder Representative under terms and provisions of or in connection with this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same may be from time to time amended, and to do Ancillary Documents or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documentsthereby, including, without limitation, the power to:
and (aii) act for the shareholders with respect to all matters referred to in authorizes the Shareholder DocumentsRepresentative to (A) execute, including deliver and receive deliveries of all adjustments agreements, certificates, statements, notices, certificates, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with Section 2.2, Section 3.3 and Section 7.3 and to waive any closing deliverables of the Aggregate Merger Consideration Buyer or approve any press releases or public announcements in connection therewith, (B) deliver to Buyer any agreements, certificates, statements, notices, certificates, approvals, extensions, waivers, undertakings, amendments, and all indemnification matters set forth herein other documents required or permitted to be given pursuant to this Agreement and have been executed by Shareholders and deposited with the right to compromise or settle any Shareholder Representative for purpose of such claims delivery, (C) on behalf of the shareholders;
applicable Shareholders, dispute or refrain from disputing any claim made by Buyer under this Agreement or the Escrow Agreement, and negotiate and compromise any dispute which may arise under Section 3.3 or Section 9.2(a) of this Agreement or the Escrow Agreement, (bD) amend sign any releases or waive other documents with respect to any provision such dispute or remedy described in subsection (C), (E) subject to any additional consents required pursuant to Section 11.9, negotiate, execute, and deliver any amendments to this Agreement, (F) petition the Escrow Agent for the release of any or all funds due to the Founders or the Shareholders under Section 3.3 and Section 3.1 of this Agreement, respectively, and the Escrow Agreement and, subject to the Shareholder Representative’s other responsibilities under this subsection, pay to each Founder or other Shareholder, as applicable, such Founder’s or other Shareholder’s Pro Rata Share of such funds, (G) pay out of the Reserve Account or funds otherwise payable to Shareholders by Buyer or the Escrow Agent all fees and expenses of Shareholders (and of the Shareholder Representative acting in such capacity) incurred in connection with the transactions contemplated by this Agreement and the Ancillary Documents, including without limitation the fees and expenses of the Paying Agent, counsel, accountants, investment bankers and other professional advisors retained by or on behalf of Shareholder Representative in connection with such transactions, and (H) bring or refrain from bringing any action, suit or proceeding after the Closing, by and on behalf of any or all Shareholders, against Buyer, any Company Group Member or any other Indemnifying Party in connection with this Agreement and the Ancillary Documents and the transactions contemplated hereby and thereby pursuant to Section 9.2(f). Except for any obligations for which Shareholders are severally, but not jointly, liable, payments made by the Shareholder Representative under subsection (including any condition G) above will be considered to Closing) be paid by all Shareholders in any manner which does not differentiate among accordance with their respective Pro Rata Shares. Any amounts remaining in the shareholders;Reserve Account following the final resolution of the Closing Working Capital and Closing Cash under Section 3.3 shall be promptly paid to the Shareholders in accordance with their respective Pro Rata Shares.
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the If any Shareholder Representative and rely on their advice and counsel;
(d) incur any expensesresigns, liquidate and withhold assets received on behalf ceases to be a legal entity, dies or becomes incapacitated, its or his successor will be appointed within 15 days of such event by the Shareholders owning a majority of the shareholders Shares held by all of the Shareholders immediately prior to their distribution to the shareholders to Closing, including each of the extent Founders. The decisions and actions of any amount which the successor Shareholder Representative deems necessary will be, for payment of or as a reserve against expensesall purposes, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions those of the Shareholder Representative as if originally named herein. The death or incapacity of any Shareholder will not terminate the acts authority and agency of the shareholders in all matters referred Shareholder Representative. Any successor Shareholder Representative will provide Buyer with prompt written notice of its or his appointment.
(d) Buyer will be entitled to in rely exclusively upon any communication given or other action taken by the Shareholder DocumentsRepresentative in accordance with this Agreement and will not be liable to Shareholders or any other Person for any action taken or not taken in reliance upon the Shareholder Representative. Each shareholder hereby ratifies and confirms all Xxxxx will not be obligated to inquire as to the authority of the Shareholder Representative with respect to the taking of any action set forth in Section 11.17(b) that the Shareholder Representative shall do or cause to be done by virtue takes on behalf of such Shareholders.
(e) Each Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but agrees that the Shareholder Representative shall not be responsible to any shareholder liable for any loss actions taken or damage any shareholder may suffer by reason of omitted to be taken under or in connection with this Agreement or the performance by Escrow Agreement or the Shareholder Representative of transactions contemplated hereby or thereby, except to the extent such shareholder Representative's duties under the Shareholder Documents, other than loss actions or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder omissions shall have the right to petition been determined by a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for have constituted willful misconduct or bad faithintentional fraud.
(f) As used herein, “Pro Rata Share” means each Shareholder’s pro rata share of the issued, outstanding and vested Shares held by all of the Shareholders or such group of Shareholders, as the case may be, determined as of the Closing Date.
Appears in 1 contract
Shareholder Representative. By (a) The Shareholder Parties hereby collectively and irrevocably constitute and appoint the execution and delivery of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, Shareholder Representative as the true and lawful their exclusive agent and attorney-in-fact (the "Shareholder Representative") of such shareholder fact, with full powers power and authority, in the name of substitution and for and to act on behalf of all the Shareholder Parties or in the name, place name of the Shareholder Representative (i) to take any and stead all actions on behalf of such shareholder the Shareholder Parties with respect to the performance on behalf of such shareholder under terms and provisions of transactions contemplated by this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Parties could take if acting individually including settlement, compromise and resolution, with respect to all matters arising under this Agreement for which the Shareholder Representative shall has been provided with authority, responsibility, management or control in this Agreement, in all such cases as the Shareholder Representative may deem necessary desirable or necessary, (ii) to give and receive all notices, consents, wire transfer payment instructions for the Shareholder Parties, certificates, agreements, waivers, releases, elections, accountings, reports and other communications in connection with the foregoing, (iii) to assert any claim, action, proceeding or investigation against Parent, and (iv) to refrain from enforcing any right of the Shareholder Parties or any of them or the Shareholder Representative arising out of or under or in any manner related to this Agreement or the transactions contemplated hereby. The Shareholder Representative is also authorized (x) to execute and deliver all amendments to this Agreement as the Shareholder Representative deems necessary, advisable or appropriate in connection with any of the transactions contemplated under this foregoing matters and (y) to execute and deliver such other miscellaneous certificates and incidental documents required of any Shareholder DocumentsParty after the Closing; and all such amendments, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in agreements certificate and documents shall be fully binding on the Shareholder Documents, including Parties in all adjustments to the Aggregate Merger Consideration respects and for all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;purposes.
(b) amend The foregoing appointment shall be an agency coupled with an interest, and all authority conferred hereby is irrevocable and is not subject to termination by any Shareholder Party, or waive by operation of law, whether by death, incapacity or the occurrence of any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;other event.
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in Xxxxxx Xxxxxx hereby accepts his or her sole discretion, deems necessary or advisable in the performance of his or her duties appointment as the Shareholder Representative and rely on their advice and counsel;behalf of all the Shareholder Parties pursuant to this Agreement.
(d) incur If any expensesdeath, liquidate and withhold assets received on behalf of the shareholders prior incapacity or other such event with respect to their distribution any Shareholder should occur, any action taken, or to the shareholders to the extent of any amount which be taken, by the Shareholder Representative deems necessary for payment shall be as valid as if such death, incapacity or other event had not occurred, regardless of whether or as a reserve against expensesnot the Shareholder Representative or Parent shall have received notice of such death, and pay such expenses incapacity or deposit the same in an interest-bearing bank account established for such purpose;other event.
(e) receive all noticesAny communication, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do notice, consent, certificate, agreement, waiver, election, accounting, report or refrain from doing any further act or deed on behalf of the shareholders which other matter delivered to the Shareholder Representative deems necessary in accordance with the provisions of this Agreement shall be deemed delivered to all the Shareholder Parties. Every Party to this Agreement and any other interested Person may rely on any communications, notices, consents, certificates, agreements, waivers, elections, accountings, reports and any other matter sent by the Shareholder Representative as if same had been sent by all the Shareholder Parties. The Shareholder Parties hereby waive any and all claims against Parent based upon the actual or appropriate, in his or her sole discretion, relating to the subject matter alleged lack of authorization of the Shareholder Documents as fully and completely as Representative with respect to any action taken by Parent in reliance on the authority of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(gf) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases shall be unable to function in such capacity for any reason whatsoeverserve as the Shareholder Representative, then the a successor Shareholder Representative shall be selected by the person which Shareholder Parties who held at least a majority of all Company Shares immediately prior to the shareholders appoint; providedClosing, howeverand the Shareholder Parties shall deliver written notice of such appointment to Parent.
(g) To the extent the Shareholder Representative has authority to act on such matter pursuant to this Agreement, that if Parent and its Affiliates (including, after the Closing, the Surviving Company) are entitled to deal exclusively with the Shareholder Representative on all matters relating to this Agreement, and the other Ancillary Agreements and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by the Shareholder Representative, for or on behalf of any reason no successor has been appointed within thirty Shareholder Party, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Shareholder Party. Parent and its Affiliates (30including, after the Closing, the Surviving Company) daysshall be entitled to disregard any decisions, then communications or writings made, given or executed by any shareholder shall have Shareholder in connection with this Agreement and any other agreement or document contemplated hereby and the right to petition a court of competent jurisdiction for appointment of a successor transactions contemplated by this Agreement unless the same is made, given or executed by the Shareholder Representative. The shareholders do hereby jointly Notwithstanding anything to the contrary set forth herein, from and severally agree after the Closing, none of Parent, the Surviving Company or any of their respective Affiliates, shall be liable for any liability to indemnify and hold any Person, including any Shareholder, for any action taken or not taken by the Shareholder Representative harmless from and against or for any and all liabilityact or omission taken or not taken in reliance upon the actions taken or not taken or decisions, losscommunications or writings made, costgiven or executed by the Shareholder Representative, damage or expense including any failure of the Shareholder Representative (including without limitation attorneys' fees) reasonably incurred or suffered so long as a such failure is not the result of any act or failure to act of Parent) to distribute (or cause to be distributed) or subdivide (or cause to be subdivided) in the performance of such Shareholder Representative's duties under correct amounts any payments made to the Shareholder Documents except Representative by Parent or its Subsidiaries (including, after the Closing, the Surviving Company) for willful misconduct distribution to any Shareholder, among Shareholders or bad faithany other Person; it being understood that once Parent or its Affiliates (including, after the Closing, the Surviving Company) has made a payment to be made pursuant to this Agreement or any other Ancillary Agreement, in accordance with the terms of the relevant agreement, to the Shareholder Representative for distribution to any Shareholder, among Shareholders or to such other Person, such payment shall constitute a complete discharge of the relevant payment obligation of Parent or such Affiliate.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
Shareholder Representative. By (a) In the execution event that the Merger is approved by the Stockholders, and delivery effective upon such approval without further act of this Agreementany Stockholder, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, Robert Sires shall be appointed as the their true and lawful representatxxx, xxxxx, agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act in the name, place for and stead of such shareholder with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Representative shall deem necessary or appropriate Stockholders in connection with any of or relating to the transactions contemplated under this Shareholder DocumentsTransaction Documents and the Merger and in accordance with the procedures approved by the Stockholders, including, without limitation, to give and receive notices and communications, to receive and accept service of legal process in connection with any proceeding arising under the power Transaction Documents or in connection with the Merger, to review and confirm the amount of the Final Net Working Capital, to receive and deliver amounts comprising the Closing Merger Consideration and the Post-Closing Merger Consideration, to authorize delivery of cash from the Escrow Amount in satisfaction of claims by a Purchaser Indemnified Party pursuant to Article 9 hereof, to object to or accept any claims by a Purchaser Indemnified Party pursuant to Article 9 hereof, to agree to:
(a) act for the shareholders , negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, to make any payment to a Dispute Indemnified Party pursuant to Article 9, and to take all matters referred to actions necessary or appropriate in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision sole opinion of the Shareholder Documents Representative for the accomplishment of the foregoing. Such agency may be changed at any time and from time to time by the action of Stockholders holding more than fifty percent (including 50%) of the issued and outstanding Shares that approved the Merger, and shall become effective upon not less than thirty (30) days prior written notice to the Parent. Except as provided in the foregoing sentence, in the event that for any condition to Closing) reason the most recent Shareholder Representative shall no longer be serving in any manner which does not differentiate among such capacity, including, without limitation, as a result of the shareholders;
(c) employ and obtain the advice death, resignation or incapacity of legal counsel, accountants and other professional advisors as the Shareholder Representative, the outgoing Shareholder Representative shall appoint a successor Shareholder Representative, and if the outgoing Shareholder Representative fails or is unable to appoint a successor, then the Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger shall appoint such successor, such that at all times there will be a Shareholder Representative with the authority provided hereunder. Any change in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution pursuant to the shareholders foregoing sentence shall become effective upon delivery of written notice of such change to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholderParent. The Shareholder Representative shall act for receive such compensation as shall be determined by the shareholders on all Board of Directors of the matters set forth in Company or by any one or more individuals authorized to determine the Shareholder Documents in the manner same. Notices or communications to or from the Shareholder Representative believes by or to be in the best interest any of the shareholders, but parties to the Transaction Documents shall constitute notice to or from each of the Stockholders.
(b) The Shareholder Representative shall not be responsible to any shareholder liable for any loss act done or damage any shareholder may suffer by reason omitted hereunder as Shareholder Representative in the absence of the performance by gross negligence and willful misconduct on his or her part (which shall be deemed not to exist if the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith acted in the performance of such Shareholder Representative's duties under the Shareholder Documentsgood faith). Each of the shareholders hereby expressly acknowledges The Stockholders shall jointly and agrees that severally indemnify the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liabilitydamages, lossactions, costproceedings, damage demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense nature whatsoever (whether or not arising out of third-party claims and including without limitation attorneys' feesall amounts paid in investigation, defense or settlement of the foregoing) reasonably incurred (collectively, "Losses") which may be sustained or suffered as a by the Shareholder Representative in connection with the administration of its duties hereunder, except where such Losses arise from or are the result of the performance of such Shareholder Representative's duties under gross negligence or willful misconduct (which shall be deemed not to exist if the Shareholder Documents except Representative acted in good faith).
(c) Any decision, act, consent or instruction taken or given by the Shareholder Representative pursuant to this Agreement shall be and constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding and conclusive upon each such Stockholder, and the Escrow Agent and the 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 Stockholder. The Escrow Agent and the 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; provided that such acts are taken in good faith and absent gross negligence and willful misconduct or bad faithon the part of the Escrow Agent and the Parent respectively.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the execution approval of the Merger and delivery this Agreement by the requisite vote of this Agreementthe Shareholders, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, of the Shareholders shall be deemed to have agreed to appoint Magnum Communications Fund L.P. as the true and lawful its agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 documentsfact, as the Shareholder Representative shall deem for and on behalf of the Shareholders (i) to give and receive notices and communications, to authorize payment to any Indemnified Party directly against the Shareholders in satisfaction of claims by any Indemnified Party, 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 such claims, to negotiate, investigate and resolve all matters relating to ARTICLE VIII and ARTICLE IX hereof, 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, (ii) to agree to, negotiate, execute and distribute the Earnout Warrants and deliver the Earnout Warrants to the Shareholders as provided therein, to fulfill all of its obligations thereunder and EXECUTION COPY resolve all matters relating thereto, act on behalf of the Shareholders in connection therewith, (iii) to prepare the Payment Schedules and to direct the payment of all Merger Consideration payable hereunder, and (iv) to take all other actions that are either (A) necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment judgment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions for the accomplishment of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do foregoing or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance (B) specifically mandated by the Shareholder Representative terms of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documentsthis Agreement. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall Such agency may be entitled to rely on any and all action taken changed by the Shareholder Representative under the Shareholder Documents without liability to, or obligation Shareholders from time to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases time upon not less than thirty (30) days prior written notice to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless Shareholders holding a majority of Company Shares agree to such removal and to the identity of the substituted agent. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly and severally agree to Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and arising out of such or in connection with the acceptance or administration of the Shareholder Representative's duties under hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Documents except Representative ("SHAREHOLDER REPRESENTATIVE EXPENSES"). A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, 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 as being the decision, act, consent or instruction of the Shareholders. Parent is hereby relieved from any liability to any person for willful misconduct any acts done by it in accordance with such decision, act, consent or bad faithinstruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) (x) By virtue of the execution approval of the Merger and delivery this Agreement by the requisite vote of this Agreementthe Shareholders, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: of the Shareholders shall be deemed to have agreed to appoint Xxxxxx X. Xxxxx, Xxxxx as the true and lawful its agent and attorney-in-fact fact, and (y) by virtue of the "return of the Option Waiver and receipt of consideration in connection with their Company In the Money Options, each Optionholder shall be deemed to have agreed to appoint Xxxxxx Xxxxx as its agent and attorney-in-fact, in each case as the Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place Representative for and stead of such shareholder with respect to the performance on behalf of such shareholder the Shareholders and Optionholders to take all actions under terms and provisions this Agreement that are to be taken by the Shareholder Representative, including to amend this Agreement, to waive any provision of this Agreement, to negotiate payments due pursuant to this Article VI, to give and receive notices and communications, to authorize payment to any Indemnified Party, including reductions in the Working Capital Escrow Contingent Consideration pursuant to Section 6.3, in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Shareholder or Optionholder or by any such Shareholder or Optionholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder or Optionholder, 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 Indemnification Escrow Agreement judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the "Shareholder Documents"), as the same terms of this Agreement. Such agency may be changed by the Shareholders and Optionholders from time to time amended, and upon not less than thirty (30) days prior written notice to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless Shareholders and Optionholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the Shareholders and Optionholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration. In the event a vacancy in the position of Shareholder Representative exists for any reason no successor has been appointed within thirty fifteen (3015) or more days, then any shareholder Parent shall have the right to petition a court of competent jurisdiction for appointment of to appoint a successor replacement Shareholder Representative. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services; provided, however, that the Shareholder Representative shall be entitled to reimbursement of his expenses from the Shareholder Representative Fund. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders and Optionholders.
(b) The shareholders do Shareholder Representative represents and warrants to Parent, the Shareholders and the Optionholders that he has the irrevocable right, power and authority (i) to enter into and perform this Agreement and to bind each of the Shareholders and Optionholders to its terms, (ii) to give and receive directions and notices hereunder and (iii) to make all determinations that may be required or that he deems appropriate under this Agreement.
(c) Until notified in writing by the Shareholder Representative that he has resigned, or that he has been removed by Shareholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration, Parent may rely conclusively and act upon the directions, instructions and notices of the Shareholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by Shareholders and Optionholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration. If for any reason there is no Shareholder Representative at any time, all references herein to the Shareholder Representative shall be deemed to refer to the Shareholders and Optionholders until a Shareholder Representative is appointed pursuant to Section 6.5(a).
(d) The Company, the Shareholders and the Optionholders each hereby jointly authorize the Shareholder Representative to:
(i) Receive all notices or documents given or to be given to the Shareholders and severally agree Optionholders pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Shareholder Representative may in his sole discretion deem appropriate; and
(iii) Take such action as the Shareholder Representative may in his sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as the Shareholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in his capacity as Shareholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VI and any waiver of any obligation of Parent or the Surviving Corporation.
(iv) Administer the Shareholder Representative Fund and pay any and all third-party expenses of the Shareholder Representative incurred in furtherance of his duties hereunder.
(e) The Shareholder Representative shall 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. The Shareholders and Optionholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative. A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and Optionholders and shall be final, binding and conclusive upon the Shareholders and Optionholders; 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 Shareholders and Optionholders. Parent is hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
(including without limitation attorneys' feesf) reasonably On the Closing Date, Parent shall deposit with a third party bank to be appointed by the Shareholder Representative, the Shareholder Representative Fund, to provide for the reimbursement of expenses incurred or suffered as a result of by the Shareholder Representative in connection with the performance of his duties under this Agreement. The deposit of the Shareholder Representative Fund by Parent to such bank shall completely discharge Parent’s obligations with respect to such amount, and in no event shall Parent have any responsibility or liability whatsoever for the manner in which the Shareholder Representative administers the Shareholder Representative Fund, or for causing or ensuring that all or any portion of the Shareholder Representative Fund is ultimately paid or distributed to the Shareholders and Optionholders.
(g) Upon the later of the Contingent Consideration Payment Date or the final resolution of any Objection Notice submitted with respect to a claim made in an Officer’s Certificate prior to the Contingent Consideration Payment Date, the Shareholder Representative shall distribute any funds remaining in the Shareholder Representative Fund to the Shareholders and Optionholders on a pro rata basis (based on the amount the Merger Consideration to which each Shareholder and Optionholder is otherwise entitled pursuant to Section 1.6). Any amounts due to Optionholders who are employees of the Surviving Corporation on the Contingent Consideration Payment Date shall be paid by the Shareholder Representative to the Surviving Corporation for payment to the Optionholders. Upon completion of the distribution of the Shareholder Representative Fund, the Shareholder Representative's ’s duties under the Shareholder Documents except for willful misconduct or bad faithand authority hereunder shall cease.
Appears in 1 contract
Shareholder Representative. (a) By approving this Agreement and the execution transactions contemplated hereby or by executing and delivery delivering a Letter of this AgreementTransmittal, each shareholder hereby Shareholder shall have irrevocably constitutes authorized and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, appointed Shareholder Representative as the true and lawful agent such Person’s representative and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms Person with respect to this Agreement and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same may to take any and all actions and make any decisions required or permitted to 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 taken by Shareholder Representative shall deem necessary pursuant to this Agreement or appropriate in connection with any the Escrow Agreement, including the exercise of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(ai) act give and receive notices and communications;
(ii) authorize delivery to Parent of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Parent pursuant to Section 2.12(f) or from the Indemnification Escrow Fund in satisfaction of claims for the shareholders indemnification made by Parent pursuant to Article VIII;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.12(f);
(iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to all matters referred claims for indemnification made by Parent pursuant to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholdersArticle VIII;
(bv) amend litigate, arbitrate, resolve, settle or waive compromise any provision of the Shareholder Documents (including any condition claim for indemnification pursuant to Closing) in any manner which does not differentiate among the shareholdersArticle VIII;
(cvi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Escrow Agreement);
(vii) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Escrow Agreement);
(viii) engage, employ and obtain the advice of legal counselor appoint any agents or representatives (including attorneys, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the consultants) to assist Shareholder Representative in complying with its duties and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documentsobligations; and
(fix) do take all actions necessary or refrain from doing 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 (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any further act kind whatsoever) on any document executed or deed purported to be executed on behalf of the shareholders which the 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 deems necessary shall constitute notice to or appropriatefrom each of the Shareholders. Any decision or action by Shareholder Representative hereunder, in his or her sole discretion, including any agreement between Shareholder Representative and Parent relating to the subject matter defense, payment or settlement of the Shareholder Documents as fully any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed 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 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 irrevocableterminated by any act of any one or more Shareholders, or by operation of Law.
(b) The Shareholder Representative may resign at any time, and may be removed for any other person may conclusively and absolutely rely, without inquiry, upon any actions reason or no reason by the vote or written consent of a majority in interest of the Shareholders according to each Shareholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Shareholder Representative as resign or be removed without the acts 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 shareholders in all matters referred to in the death, incapacity, resignation or removal of Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Representative, a new Shareholder Representative shall do be appointed by the vote or cause to be done by virtue written consent of the Majority Holders. Notice of such Shareholder Representative's appointment as Shareholder Representative vote or a copy of the written consent appointing such shareholder. The new Shareholder Representative shall act for be sent to Parent, such appointment to be effective upon the shareholders on all later of the matters set forth date indicated in such consent or the Shareholder Documents in date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person Surviving Corporation shall be entitled to rely on any the decisions and all action taken by actions of the prior Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function as described in such capacity for any reason whatsoever, then the successor Section 9.01(a) above.
(c) The Shareholder Representative shall not be liable to the person which Shareholders for actions taken pursuant to this Agreement or the shareholders appoint; providedEscrow Agreement, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder except to the extent such actions shall have the right to petition been determined by a court of competent jurisdiction for appointment 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 a successor counsel, accountants and other professionals and experts retained by Shareholder RepresentativeRepresentative shall be conclusive evidence of good faith). The shareholders do hereby Shareholders shall severally and not jointly and severally agree to (in accordance with their Pro Rata Shares), indemnify and hold the harmless Shareholder Representative harmless from and against against, compensate it for, reimburse it for and pay any and all liabilitylosses, lossliabilities, costclaims, damage actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Shareholder Representative under this Agreement and the Escrow Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or expense (including without limitation attorneys' fees) reasonably incurred incurred; provided, that in the event it is finally adjudicated that a Representative Loss or suffered as a result any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Shareholder Representative, Shareholder Representative shall reimburse the performance Shareholders the amount of such Shareholder Representative's duties under the Shareholder Documents except for willful indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied: (i) from the Shareholder Representative Expense Fund; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to Shareholder Representative under (i), from the Shareholders, severally and not jointly (in accordance with their Pro Rata Shares). As soon as practicable after the date on which the final obligation of Shareholder Representative under this Agreement and the Escrow Agreement have been discharged or such other date as Shareholder Representative deems appropriate, the Escrow Agent shall pay any amounts remaining in the Shareholder Representative Fund to the Shareholders in accordance with their Pro Rata Shares, as set forth in the Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Northwest Pipe Co)
Shareholder Representative. By (a) Each of the execution Shareholders hereby appoints Xxxxxx Bank, not individually but as Trustee of and delivery on behalf of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: the Xxxxxx X. XxxxxXxxxx Trust, as the true and lawful its agent and attorney-in-fact (fact, as the "Shareholder Representative") " for and on behalf 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 shareholder payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full powers orders of substitution to act in the name, place courts and stead awards of such shareholder arbitrators with respect to 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 performance on behalf transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of such shareholder under the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same . Such agency may be changed by the Shareholders from time to time amended, and upon not less than 30 days prior written notice to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly and severally agree Shareholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all loss, liability, loss, cost, damage or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and arising out of such or in connection with the acceptance or administration of the Shareholder Representative's duties under hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Documents except Representative ("Shareholder Representative Expenses"). A decision, act, consent, or instruction of the Shareholder Representative, including but not limited to an amendment or waiver of this Agreement pursuant to Section 9.12 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 as being the decision, act, consent, or instruction of the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for willful misconduct any acts done by them in accordance with such decision, act, consent or bad faithinstruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. By 11.7.1 At the execution Closing, Xxxxxx shall be constituted and delivery of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, appointed as the true and lawful Shareholder Representative. The Shareholder Representative shall be the exclusive representative, agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place for and stead of such shareholder with respect to the performance on behalf of the Sellers to: (i) give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection with the Transactions, for and on behalf of any Seller, to or from Buyer (on behalf of itself or any other Seller) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such shareholder under terms other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by a Seller individually), (ii) review, negotiate and provisions agree to and authorize Buyer to reclaim an amount from the Aggregate Holdback Amount and Escrow Amount in satisfaction of claims asserted by Buyer (on behalf of itself or any other Buyer Indemnified Party, including by not objecting to such claims) pursuant to Sections 4, 9 and 10, (iii) object to such claims pursuant to Section 10, (iv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Indemnifying Shareholder or 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, (v) consult with legal counsel, independent public accountants and other experts selected by it, solely at the Working Capital Escrow cost and expense of the Indemnifying Shareholders, (vi) consent or agree to, including the execution and delivery of, any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Indemnification Escrow Agreement Sellers in accordance with the terms hereof and in the manner provided herein, (the "Shareholder Documents"vii) pursuant to Section 2 and 3, review, negotiate, object to, accept or agree to Buyer’s calculation of Purchase Price (including any portion thereof such as an Earn-out Payment and any Purchase Price Adjustment), as the same may be from time to time amended, ; and to do or refrain from doing (viii) take all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem actions necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment judgment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions for the accomplishment of the Shareholder Representative as foregoing, in each case without having to seek or obtain the acts consent of any Person under any circumstance. Zenvia and its Affiliates (including after the shareholders in all matters referred to in Closing, the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person Companies) shall be entitled to rely on any the appointment of Xxxxxx as initial the Shareholder Representative and treat such Shareholder Representative as the duly appointed attorney-in-fact of each Seller and as having the duties, power and authority provided for in this Section 11.8. The Sellers shall be bound by all action actions taken and documents executed by the Shareholder Representative under the Shareholder Documents without liability toin connection with this Section 11.8, and Buyer and other Buyer Indemnified Parties shall be entitled to rely exclusively on any action or obligation to inquire of, any decision of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold Person serving as the Shareholder Representative may resign, or be removed or replaced at any time by the Seller’s holding more than fifty percent (50%) of the Seller Pro-Rata Share as of immediately prior to the effective time of the Closing, provided that if such Person resigns from its position as the Shareholder Representative, then a successor may be appointed, by the Seller’s holding more than fifty percent (50%) of the Seller Pro-Rata Share as of immediately prior to the effective time of the Closing, upon not less than 10 days’ prior written notice to Buyer.
11.7.2 The Shareholder Representative shall not be liable to any Seller for any act done or omitted hereunder as the 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) and without gross negligence or willful misconduct. The Shareholder Representative shall serve as the Shareholder Representative without compensation; provided that the Sellers shall severally but not jointly, on a pro-rata basis (i) in accordance with such Seller’s Seller Pro-Rata Share in the case of matters not related to indemnification matters hereunder, and (ii) in accordance with such Seller’s Indemnification Pro-Rata Share in the case of matters related to indemnification matters hereunder, indemnify the Shareholder Representative and hold him/her/it harmless from and against any and all liability, loss, cost, damage Liability or expense (incurred without gross negligence, willful misconduct or bad faith on the part of the Shareholder Representative and arising out of, resulting from or in connection with the acceptance or administration of his duties hereunder, including without limitation attorneys' fees) all reasonable out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholder Representative (collectively, the “Shareholder Representative Expenses”). If not paid directly to the Shareholder Representative by the Sellers, such losses, Liabilities or expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund Amount and (ii) in the case of Shareholder Representative Expenses related to indemnification matters hereunder, the portion of the Aggregate Holdback Amount or Escrow Account otherwise distributable to the Indemnifying Shareholders (and not distributed or distributable to a Buyer Indemnified Party or subject to a Resolved Claim or an Unresolved Claim) on or after the applicable date of release and payment of such amounts by Buyer to the Indemnifying Shareholders pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Sellers according to their respective Seller Pro-Rata Shares or Indemnification Pro-Rata Share (depending on whether such matters do not relate, or relate, to indemnification matters hereunder, respectively) of such losses, Liabilities or expenses; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers 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 Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the indemnifying Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the termination of this Agreement.
11.7.3 The Buyer shall not, in any circumstance, be liable for any acts or omissions of the Shareholders Representative related to the Sellers, including, but not limited to, with regards to any conflict or dispute between the Shareholders Representative and the Sellers in relation to the content and conditions of this Agreement. The Sellers agree that the appointment of the Shareholders’ Representative pursuant to his duties mentioned in Section 11.8.1 shall not, in any circumstance, be considered as the Sellers have not reviewed, negotiated or agreed with any provision contained in this Agreement and, as such, the Sellers shall not be exempted from complying with any obligation applicable to the Sellers under this Agreement due to the appointment of the Shareholders’ Representative.
11.7.4 Upon the Closing, Buyer will wire to the Shareholder Representative the Expense Fund Amount, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative for, any Shareholder Representative Expenses incurred pursuant to this Agreement and any other agreement, document or instrument entered into or executed in connection with the Transactions. 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 Expense Fund Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative is not acting as a withholding agent or in any similar capacity in connection with the performance Expense Fund Amount, and has no tax reporting or income distribution obligations. The Sellers will not receive any interest or earnings on the Expense Fund 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. As soon as practicable following the earlier of such (i) the twenty-four (24) month anniversary of the Closing Date, and (ii) the completion of the Shareholder Representative's duties under ’s responsibilities, the Shareholder Documents except for willful misconduct or bad faithRepresentative will deliver any remaining balance of the Expense Fund Amount to the Indemnifying Shareholders in accordance with their Indemnification Pro-Rata Share thereof. For tax purposes, the Expense Fund Amount will be treated as having been received and voluntarily set aside by the Indemnifying Shareholders at the time of Closing.
Appears in 1 contract
Shareholder Representative. By (a) The approval by the execution Shareholders of the principal terms of the Merger shall automatically and delivery without any further action on the part of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, any Shareholder constitute the appointment of the Shareholder Representative as the true and lawful agent and attorney-in-fact (for each of the "Shareholder Representative") Shareholders, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Closing Escrow Fund and the Special Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such shareholder payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full powers orders of substitution to act in the name, place courts and stead awards of such shareholder arbitrators with respect to 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 performance on behalf transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of such shareholder under the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same . Such agency may be changed by the Shareholders from time to time amended, and upon not less than thirty (30) days’ prior written notice to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless holders of a majority in interest of the Closing Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Closing Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly Shareholders on whose behalf the Closing Escrow Fund, Special Escrow Fund, and severally agree to Earnout Escrow Fund were constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and 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 legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date or the Special Termination Date, as the case may be, and subject to Section 9.6, any shares of Parent Common Stock, cash or other property that remains available in the Closing Escrow Fund, the Special Escrow Fund, or the Earnout Escrow Fund, as the case may be, shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any holder of Company Common Stock. 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 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 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 decision, act, consent or instruction of the Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Samples: Merger Agreement (Accelrys, Inc.)
Shareholder Representative. By the execution and delivery of this Agreement, Agreement each shareholder Shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, Mark Stellini as the true and lawful agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution " referred to act in elsexxxxx xx xxxx Agreement. The Shareholder Representative shall have the nameauthority, place for and stead of such shareholder with respect to the performance on behalf of the Shareholders to take such shareholder under terms actions and provisions exercise such discretion as are required of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), 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 Shareholder Representative pursuant to the terms of this Agreement and any related document or instrument (and any such actions shall deem necessary or appropriate in connection with any of be binding on the transactions contemplated under this Shareholder DocumentsShareholders), including, including without limitation, limitation the power tofollowing:
(a) act for the shareholders with respect to all matters referred execute stock powers and to in the Shareholder Documents, including all adjustments receive and hold and deliver to the Aggregate Merger Consideration and all indemnification matters set forth herein and Purchaser or the right to compromise or settle Escrow Agent (as hereinafter defined) any such claims other documents relating thereto on behalf of the shareholdersShareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ give and obtain the advice of legal counsel, accountants receive communications and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications to execute, acknowledge, deliver, record and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders file all ancillary agreements, certificates and documents which the Shareholder Representative deems necessary or appropriate, appropriate in his or her sole discretion, relating to connection with the subject matter consummation of the Shareholder Documents transactions contemplated by the terms and provisions of this Agreement;
(c) to negotiate, agree to, enter into settlements and compromises of, and demand participation and arbitration and comply with orders and awards of courts and arbitrators with respect to claims for damages and otherwise;
(d) to receive payments due under this Agreement and the Escrow Agreement (as fully hereinafter defined) and completely as acknowledge receipt for such payments;
(e) to waive any of breach or default under this Agreement, or to waive any condition precedent to Closing;
(f) amend this Agreement, the shareholders could do if personally present and acting and as though Escrow Agreement or any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.related document or instrument;
(g) The appointment to terminate this Agreement, the Escrow Agreement or any related document or instrument;
(h) to receive service of process in connection with any claims under this Agreement, the Escrow Agreement or any related document or instrument;
(i) to perform the obligations and exercise the rights under any related document or instrument, including the settlement of claims and disputes with Purchaser and the Shareholders; and
(j) to take all actions necessary or appropriate in the judgment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any to accomplish the foregoing actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faiththis Section 2.1.
Appears in 1 contract
Shareholder Representative. By (a) The approval by the execution Shareholders of the principal terms of the Merger shall automatically and delivery without any further action on the part of this Agreement, each shareholder hereby irrevocably constitutes and appoints Summit Ventures V, L.P., Attn: Xxxxxx X. Xxxxx, any Shareholder constitute the appointment of the Shareholder Representative as the true and lawful agent and attorney-in-fact (for each of the "Shareholder Representative") Shareholders, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any Indemnified Party, to object to such shareholder payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full powers orders of substitution to act in the name, place courts and stead awards of such shareholder arbitrators with respect to 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 performance on behalf transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of such shareholder under the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms and provisions of this Agreement, the Working Capital Escrow Agreement and the Indemnification Escrow Agreement (the "Shareholder Documents"), as the same . Such agency may be changed by the Shareholders from time to time amended, and upon not less than thirty (30) days’ prior written notice to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;
(b) amend or waive any provision of the Shareholder Documents (including any condition to Closing) in any manner which does not differentiate among the shareholders;
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment of the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the shareholders in all matters referred to in the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Shareholder Representative shall do or cause to be done by virtue of such Shareholder Representative's appointment as Shareholder Representative of such shareholder. The Shareholder Representative shall act for the shareholders on all of the matters set forth in the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholders, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of such shareholder Representative's duties under the Shareholder Documents, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person shall be entitled to rely on any and all action taken by the Shareholder Representative under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholders. If the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the person which the shareholders appointParent; provided, however, that if the Shareholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. 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 Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall not be liable for any reason no successor has been appointed within thirty (30) days, then any shareholder shall have act done or omitted hereunder as Shareholder Representative while acting in good faith and in the right to petition a court exercise of competent jurisdiction for appointment of a successor Shareholder Representativereasonable judgment. The shareholders do hereby jointly and severally agree to Shareholders on whose behalf the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage liability or expense (including incurred without limitation attorneys' fees) reasonably incurred gross negligence or suffered as a result bad faith on the part of the performance Shareholder Representative and 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 legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. 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 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 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 decision, act, consent or instruction of the Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faith.
Appears in 1 contract
Shareholder Representative. (a) By the execution and delivery of signing this Agreement, each shareholder hereby Parent Shareholder shall have irrevocably constitutes authorized and appoints Summit Ventures Vappointed the Shareholder Representative as such Person’s representative, L.P., Attn: Xxxxxx X. Xxxxx, as the true and lawful exclusive agent and attorney-in-fact (the "Shareholder Representative") of such shareholder with full powers of substitution to act in the name, place and stead of such shareholder with respect to the performance on behalf of such shareholder under terms Person with respect to this Agreement and provisions of this Agreement, the Working Capital Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Indemnification Shareholder Representative pursuant to this Agreement or the Escrow Agreement Agreement, including the exercise of the power to, at or after the Closing:
(i) give and receive notices and communications;
(ii) authorize disbursements of cash from the "Shareholder Documents")Escrow Amount and direct distributions from the Seller;
(iii) agree to, as the same may be from time to time amendednegotiate, enter into settlements and compromises of, and comply with or otherwise handle any matters described in Section 2.06;
(iv) agree to, negotiate, enter into settlements and compromises of, litigate and comply with or otherwise handle any matters described in Article VIII;
(v) execute and deliver all documents necessary or desirable to do carry out the intent of this Agreement and the Escrow Agreement;
(vi) engage, employ, or refrain from doing all such further acts and thingsappoint any agents or representatives (including attorneys, accountants, and consultants) to execute assist it in complying with its duties and obligations; and
(vii) take all such documentsactions necessary or appropriate in the good faith judgment of the Shareholder Representative for the accomplishment of the following. Notwithstanding the foregoing, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Shareholder Documents, including, without limitation, the power to:
(a) have no obligation to act for the shareholders with respect to all matters referred to in the Shareholder Documents, including all adjustments to the Aggregate Merger Consideration and all indemnification matters set forth herein and the right to compromise or settle any such claims on behalf of the shareholders;Parent Shareholders, except as expressly provide in this Agreement and the Escrow Agreement.
(b) amend The Shareholder Representative shall be entitled to rely upon any signature believed by it to be genuine and reasonably assume that a signatory has proper authorization to sign on behalf of a Parent Shareholder or waive any provision of other party. Buyer shall be entitled to deal exclusively with the Shareholder Documents Representative on all matters relating to this Agreement, as described herein (including Section 2.06 and Article VIII) and shall be entitled to rely conclusively (without further evidence of any condition kind whatsoever) on any document executed or purported to Closing) in be executed on behalf of any manner which does not differentiate among the shareholders;
(c) employ Parent Shareholder, and obtain the advice on any other action taken or purported to be taken on behalf of legal counsel, accountants and other professional advisors as any Parent Shareholder by the Shareholder Representative, in his as being fully binding upon such Person and such Person’s successors. No Parent Shareholder shall have the right to object to, dissent from, protest, or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Shareholder Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of the shareholders prior to their distribution to the shareholders to the extent of any amount which the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit otherwise contest the same in an interest-bearing bank account established for such purpose;
(e) receive and all noticesdefenses which may be available to any Parent Shareholder to contest, communications and deliveries hereunder on behalf of negate, or disaffirm the shareholders under the Shareholder Documents; and
(f) do or refrain from doing any further act or deed on behalf of the shareholders which the Shareholder Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Shareholder Documents as fully and completely as any of the shareholders could do if personally present and acting and as though any reference to the shareholders in the Shareholder Documents were a reference to the Shareholder Representative.
(g) The appointment action of the Shareholder Representative shall be deemed taken in good faith under this Agreement or the Escrow Agreement are hereby waived. The provisions of this Section, including the power of attorney granted hereby, and the powers, immunities and rights to indemnification granted to the Shareholder Representative hereunder: (i) are independent and severable, are irrevocable and coupled with an interest and shall not be irrevocableterminated by any act of any one or more Parent Shareholders or by operation of Law, whether by death or other event; and (ii) shall survive the delivery of an assignment by any Parent Shareholder of the whole or any fraction of his, her, or its interest in the Escrow Amount.
(c) The Shareholder Representative may resign at any time, and may be removed for any other person may conclusively and absolutely relyreason or no reason by the vote or written consent of a majority in interest of the Parent Shareholders according to each Parent Shareholder’s Pro Rata Fraction (the “Majority Holders”); provided, however, in no event shall the Shareholder Representative be removed without inquiry, the Majority Holders having first appointed a new Shareholder Representative which shall assume such duties immediately upon any actions the removal of the Shareholder Representative as Representative. In the acts event of the shareholders in all matters referred to in death, incapacity, resignation, dissolution, or removal of the Shareholder Documents. Each shareholder hereby ratifies and confirms all that the Representative, a new Shareholder Representative shall do be appointed by the vote or cause to be done by virtue written consent of the Majority Holders. Notice of such Shareholder Representative's appointment as Shareholder Representative vote or a copy of the written consent appointing such shareholder. The new Shareholder Representative shall act for be sent to Buyer, such appointment to be effective upon the shareholders on all later of the matters set forth date indicated in such consent or the Shareholder Documents in the manner the Shareholder Representative believes to be in the best interest of the shareholdersdate such notice is received by Buyer; provided, but the Shareholder Representative shall not be responsible to any shareholder for any loss or damage any shareholder may suffer by reason of the performance by the Shareholder Representative of however, that until such shareholder Representative's duties under the Shareholder Documentsnotice is received, other than loss or damage arising from willful misconduct or bad faith in the performance of such Shareholder Representative's duties under the Shareholder Documents. Each of the shareholders hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such shareholders notwithstanding any dispute or disagreement among the shareholders, and that any person Buyer shall be entitled to rely on the decisions and actions of the prior Shareholder Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholder Representative and the Closing and/or any termination of this Agreement and all action taken the Escrow Agreement.
(d) The parties hereto and the Parent Shareholders acknowledge and agree that the Shareholder Representative will have no Liability to, and will not be liable for any Losses of, any party or any Parent Shareholder for any actions, omissions or obligations of the Shareholder Representative under this Agreement or in connection with the transactions described herein, except to the extent such Losses are proven and adjudicated to be the direct result of willful misconduct by the Shareholder Representative in connection with the performance of its obligations hereunder and under the Shareholder Documents without liability to, or obligation to inquire of, any of the shareholdersEscrow Agreement. If In no event will the Shareholder Representative resigns be required to advance its own funds on behalf of the Parent Shareholders or ceases to function in such capacity for otherwise. Nothing herein shall limit the liability of any reason whatsoever, then the successor person serving as Shareholder Representative shall be the for liability such person which the shareholders appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any shareholder shall may have the right to petition a court of competent jurisdiction for appointment of a successor Shareholder Representative. The shareholders do hereby jointly and severally agree to indemnify and hold the Shareholder Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered in their capacity as a result of the performance of such Shareholder Representative's duties under the Shareholder Documents except for willful misconduct or bad faithParent Shareholder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hunt J B Transport Services Inc)
