Shareholder Representative. (a) The approval of this Agreement by the Shareholders shall constitute their ratification and approval of the appointment of the Shareholder Representative pursuant to this Agreement to act on behalf of the Indemnifying Parties, which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)): (i) for purposes of this Article VII, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing; (ii) to execute and deliver such waivers and consents in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable; (iii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties; (iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and (v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated hereby. (b) The Shareholder Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders representing a majority of the Pro Rata Portions shall appoint a successor. Additionally, the Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Indemnifying Parties. (c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. (d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative. (e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative. (f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct 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 any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses” and together with Earnout Representative Expenses, the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata Portions. (g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals. (h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with and shall keep Parent promptly informed of those individuals the Shareholder Representative shares such information with. (i) At the Effective Time, Parent shall deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such distribution was an Escrow Release.
Appears in 1 contract
Shareholder Representative. (a) The approval By the execution and delivery hereof, including counterparts hereof, each Shareholder hereby irrevocably constitutes and appoints Xxxxx Xxxxxx as the true and lawful agent and attorney-in-fact (the “Shareholder Representative”) of this Agreement by such Shareholder with full powers of substitution to act in the Shareholders shall constitute their ratification name, place and approval stead of such Shareholder with respect to the appointment performance on behalf of such Shareholder under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative pursuant to this Agreement to act on behalf of the Indemnifying Partiesshall deem necessary or appropriate in connection with any transaction contemplated hereunder, which shall include including the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):to:
(i) act for purposes of this Article VII, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts Shareholder with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claims, and to take all actions necessary or appropriate in the judgment claim on behalf of the Shareholder Representative for the accomplishment of the foregoingsuch Shareholder;
(ii) amend or waive any provision hereof (including any condition to execute Closing) in any manner that does not differentiate among any Shareholder;
(iii) employ, obtain and deliver such waivers rely upon the advice of legal counsel, accountants and consents in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby other professional advisors as the Shareholder Representative, in its the sole discretiondiscretion thereof, may deem deems necessary or desirable;
(iii) to enforce and protect advisable in the rights and interests performance of all Indemnifying Parties arising out the duties of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying PartiesRepresentative;
(iv) to refrain from enforcing receive and receipt for any right portion of the Indemnifying Parties Purchase Price or any other payment due from the Purchaser to such Shareholder pursuant to this Agreement;
(v) act for each Shareholder with respect to all Purchase Price matters and all Purchase Price adjustments matters referred to herein;
(vi) incur any expenses, liquidate and withhold assets received on behalf of them and/or such Shareholder prior to their distribution to such Shareholder to the extent of any amount that the Shareholder Representative arising out deems necessary for payment of or under as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(vii) receive all notices, communications and deliveries hereunder on behalf of such Shareholder; and
(viii) do or refrain from doing any manner relating to this Agreement further act or any document contemplated hereby; provideddeed on behalf of such Shareholder that the Shareholder Representative deems necessary or appropriate, however, that no such failure to act on in the part sole discretion of the Shareholder Representative, except relating to the subject matter hereof as otherwise provided in this Agreement, shall be deemed fully and completely as such Shareholder could do if personally present and acting and as though any reference to such Shareholder herein was a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) reference to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated hereby.
(b) The Shareholder Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders representing a majority appointment of the Pro Rata Portions shall appoint a successor. Additionally, the Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person may be changed by the Indemnifying Parties conclusively and absolutely rely, without inquiry, upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority any action of the Pro Rata PortionsShareholder Representative as the act of each Shareholder in all matters referred to herein. The outgoing Stockholders’ Each Shareholder hereby ratifies and confirms that the Shareholder Representative shall do or cause to be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required done by virtue of the Shareholder Representative’s appointment as Shareholder Representative of such Shareholder. The Shareholder Representative shall act for each Shareholder on all of the matters set forth herein in the manner the Shareholder Representative believes to be in the best interest of such Shareholder, and but the Shareholder Representative shall not receive compensation be responsible to any Shareholder for his any loss or her services. Notices or communications to or from damage such Shareholder may suffer by reason of the performance by the Shareholder Representative shall constitute notice to or from each of the Indemnifying Parties.
(c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct 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 other than loss or damage arising from willful misconduct or gross negligence in the performance of the Shareholder Representative’s duties hereunder.
(c) Each Shareholder hereby expressly acknowledges and agrees that the Shareholder Representative is authorized to act on behalf of such Shareholder notwithstanding any out-of-pocket costs dispute or disagreement, and the reasonable fees that any Person shall be entitled to rely on any and expenses of any legal counsel retained all action taken by the Shareholder Representative (“Shareholder Representative Expenses” and together with Earnout Representative Expenseshereunder without liability to, or obligation to inquire of, any Shareholder. In the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, event the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the Person that the remaining Shareholders appoint; provided, however, that in the event for any reason no successor has been appointed within thirty (30) days following such resignation or cessation, then the Shareholders shall have the right to recover petition a court of competent jurisdiction for appointment of a successor Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, Representative. The Shareholders shall indemnify and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth hold the Shareholder Representative Expenses actually incurredharmless from and against any and all liabilities, to the extent such Shareholder Representative Expenses exceed the amount losses, costs, damages and expenses (including attorneys’ fees) reasonably incurred or suffered as a result of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release performance of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata Portions.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with and shall keep Parent promptly informed of those individuals the Shareholder Representative shares such information with.
(i) At the Effective Time, Parent shall deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative’s duties hereunder, as applicable and in each case on behalf of the Indemnifying Parties, except for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative willful misconduct or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such distribution was an Escrow Releasegross negligence.
Appears in 1 contract
Shareholder Representative. (ai) The approval By virtue of this Agreement by the Shareholders shall constitute their ratification and approval of the appointment Merger or execution of the Shareholder Representative pursuant to this Agreement to act on behalf of the Indemnifying Parties, which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):
(i) for purposes of this Article VII, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating joinder to this Agreement, each Eligible Seller designates and any other document contemplated hereby, and to take any and all actions which appoints the Shareholder Representative believes are necessary or appropriate under this Agreement as such Eligible Seller’s agent and attorney-in-fact with full power and authority to act for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or each Eligible Seller in any manner relating all matters pertaining to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on following the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated hereby.
(b) The Shareholder Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders representing a majority of the Pro Rata Portions shall appoint a successor. Additionally, the Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her servicesExecution Date. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Indemnifying PartiesEligible Sellers for all purposes under this Agreement.
(cii) The Shareholder Representative shall not be liable for any act done or omitted hereunder may delegate its authority as Shareholder Representative while acting in good faith (and to any act done one of the Shareholders for a fixed or omitted pursuant indeterminate period of time upon not fewer than 10 Business Days’ prior written notice to the advice Parent in accordance with Section 10.1(b) of counsel shall the Merger Agreement. In the event of the death or incapacity of the Shareholder Representative, a successor Shareholder Representative will be conclusive evidence elected promptly as set forth in Section 10.1(b) of such good faith) the Merger Agreement. Each successor Shareholder Representative has all of the power, authority, rights and without gross negligence or willful misconductprivileges conferred by this Agreement and the Merger Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used in this Agreement includes any successor Shareholder Representative.
(diii) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute constitutes a decision of all of the Indemnifying Parties Eligible Sellers and shall be is final, binding and conclusive, conclusive upon the Eligible Sellers and the Escrow Agent Purchaser and the Indemnified Parties 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 Indemnifying Partythe Eligible Sellers. The Escrow Agent Purchaser and the Indemnified Parties Parent are hereby relieved from any Liability to any Person for any acts done or omissions by them the Purchaser or Parent in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by . Without limiting the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part generality of the Shareholder Representative foregoing, the Purchaser and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunderParent are entitled to rely, including without inquiry, upon any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained document delivered by the Shareholder Representative as being genuine and correct.
(“Shareholder Representative Expenses” iv) This appointment and together with Earnout Representative Expenses, grant of power and authority by the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly Shareholders to the Shareholder Representative by the Indemnifying Parties. After the release is coupled with an interest, is in consideration of the Escrow Fund pursuant to the terms of mutual covenants made in this Agreement, the Shareholder Representative Merger Agreement and other Ancillary Agreements, is irrevocable and may seek recovery not be terminated by the act of any unpaid Shareholder Representative Expenses from Eligible Seller or by operation of Law, whether upon the Indemnifying Parties according to their respective Pro Rata Portionsdeath or incapacity of any Eligible Seller, or by the occurrence of any other event.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with and shall keep Parent promptly informed of those individuals the Shareholder Representative shares such information with.
(i) At the Effective Time, Parent shall deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such distribution was an Escrow Release.
Appears in 1 contract
Samples: Registration Rights Agreement (Weatherford International Ltd./Switzerland)
Shareholder Representative. (a) The approval By virtue of this Agreement by the vote of the Shareholders shall constitute their ratification approving the Merger and approval adopting this Agreement, and without any further act of any of the appointment Shareholders, Parent is hereby appointed, authorized and empowered to act, for the benefit of the Shareholder Representative pursuant to this Agreement Shareholders, as the exclusive agent and attorney-in-fact to act on behalf of each Shareholder, in connection with and to facilitate the Indemnifying Partiesconsummation of the transactions contemplated hereby, including pursuant to the Ancillary Agreements (in such capacity, the “Representative”), which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):authority:
(i) for purposes of this Article VIIto execute and deliver the Ancillary Agreements to which it is a party (with such modifications or changes therein as to which the Representative, in its sole discretion, shall have consented) and to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object agree to such deliveriesamendments or modifications thereto as the Representative, in its sole discretion, determines to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoingbe desirable;
(ii) to negotiate, execute and deliver such waivers waivers, modifications, amendments, consents and consents other documents required or permitted to be given in connection with this Agreement and the Related Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to take any action on behalf of the Shareholders or any individual Shareholder that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Section 2.8;
(iv) to collect and receive all moneys and other proceeds and property payable to the Representative or the Shareholders, as applicable, from Buyer as described herein or in the Ancillary Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by the Representative, the Representative shall disburse and pay, except as otherwise provided hereunder, any amount payable to the Shareholders to each of the Shareholders to the extent of such Shareholder’s Pro Rata Share of such amount;
(v) to enforce and protect the rights and interests of the Shareholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and the Ancillary Agreements, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein, and to take any and all Indemnifying Parties actions which the Representative believes are necessary or appropriate under the Ancillary Agreements or this Agreement, including actions in connection with the determination of any payment due hereunder or thereunder for and on behalf of the Shareholders, including (A) assert any claim or institute any Proceeding; (B) investigate, defend, contest or litigate any Proceeding initiated by Buyer, any Affiliate of Buyer, or any other Person, or by any federal, state or local Governmental Entity against the Representative or any of the Shareholders, and receive process on behalf of any or all Shareholders in any such Proceeding and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Proceeding; (C) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement or the Ancillary Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of any Shareholders or the Representative arising out of or under or in any manner relating to this Agreement, and the Ancillary Agreements or any other agreement, instrument or document contemplated hereby, and to take any and all actions which in connection with the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated herebyforegoing; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties such Shareholders unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(vvii) to make, execute, acknowledge acknowledge, deliver and deliver receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement Agreement, the Ancillary Agreements, and all other agreements, documents contemplated herebyor instruments referred to herein or therein or executed in connection herewith and therewith.
(b) The Shareholder All actions, decisions and instructions of the Representative may resign shall be conclusive and binding upon written notice to all of the Surviving Corporation, with Shareholders and no Shareholders or without causeany other Person acting on behalf of any Shareholders shall have any claim or cause of action against the Representative, and the holders representing a majority Representative shall have no liability to any Shareholders or any other Person acting on behalf of any Shareholders, for any action taken, decision made or instruction given by the Representative in connection with this Agreement or any Ancillary Agreements, except in the case of the Pro Rata Portions shall appoint a successorRepresentative’s own gross negligence or intentional misconduct. AdditionallyIn the performance of its duties hereunder, the Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant rely upon any document or instrument reasonably believed by it to Section 7.6(f) hereofbe genuine, accurate as to content and signed by any Shareholders, Buyer or any other Person. The successor shall be entitled Representative may assume that any Person purporting to all give any notice in accordance with the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services. Notices or communications provisions hereof has been duly authorized to or from the Shareholder Representative shall constitute notice to or from each of the Indemnifying Partiesdo so.
(c) The Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, however, that the Representative shall have no obligation to act on behalf of the Shareholders. The Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the contrary contained herein, the Representative in its capacity as such shall have no fiduciary duties or responsibilities to any Shareholders or the Company or its Subsidiaries and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Shareholders shall otherwise exist against or with respect to the Representative in its capacity as such.
(d) In no event shall the Representative be liable hereunder or in connection herewith for any Non-Reimbursable Damages or for any liabilities resulting from the actions of a Shareholders other than the Representative acting in its capacity as such. Buyer shall have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement and the Ancillary Agreements, all of which actions or omissions shall be legally binding upon the Shareholders. The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable by any act of any Shareholder or by operation of Law and all of the indemnities, immunities, authority and power granted to the Representative hereunder shall survive the death, incompetency, bankruptcy or liquidation of any Shareholder and (ii) shall survive the Closing or any termination of this Agreement or any Ancillary Agreement.
(e) The Representative shall not be liable for any act done or omitted hereunder or under any Ancillary Agreement as Shareholder Representative while acting in good faith (and any act done or omitted pursuant faith. Each Shareholder shall, to the advice extent of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decisionits Pro Rata Share, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, negligence or willful misconduct or bad faith on the part of the Shareholder Representative or any of its Affiliates and any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunderhereunder (including pursuant to any Ancillary Agreement), including any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative. Buyer (“Shareholder Representative Expenses” on its behalf and together with Earnout Representative Expenseson behalf of its Affiliates, including, after the Closing, the Company) acknowledges that the Representative, in its capacity as the representative pursuant to this Section 10.5 (and not, for the avoidance of doubt, in its capacity as “Parent” hereunder), is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim shall be brought by or on behalf of Buyer or any of its Affiliates (including, after the Closing, the Company) against the Representative Expenses”). Following in its capacity as such with respect to this Agreement or the termination agreements or transactions contemplated hereby or any certificate, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “Parties” or “each of the Escrow FundParties” at or prior to the Closing shall not be deemed to require performance by, or be an agreement of, the resolution of all Unresolved Claims and Representative unless performance by the satisfaction of all claims made by Indemnified Parties Representative is expressly provided for Losses, in such covenant or the Shareholder Representative shall have the right to recover Shareholder Representative Expenses expressly so agrees).
(f) Upon written notice from the Escrow Fund prior to any distribution Representative to the Indemnifying PartiesShareholders delivered within two (2) years following the Closing, and prior to any such distribution, each Shareholder shall promptly deliver to the Escrow Agent a certificate setting forth Representative full payment of such Shareholder’s Pro Rata Share of all out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Ancillary Agreements; provided that no Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the shall be liable for an amount in excess of its Pro Rata Share of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata PortionsAggregate Stockholder Consideration Value.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as Any resignation by the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on be effective until a need to know basis to individuals who agree to treat such information confidentially). The Shareholder new Representative shall be responsible for any breach appointed by Persons who hold a majority of this Section 7.6(g) by individuals the Shareholder Representative shares such information with and shall keep Parent promptly informed Shares (or Shareholders who held a majority of those individuals the Shareholder Representative shares such information with.
(i) At Shares immediately prior to the Effective Time, Parent shall deposit if the Closing has occurred) and has confirmed his, her or cause its acceptance of such appointment in writing to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such distribution was an Escrow ReleaseBuyer.
Appears in 1 contract
Samples: Merger Agreement (Invesco Ltd.)
Shareholder Representative. (a) The approval In order to efficiently administer the transactions contemplated by this Agreement, the Plan of Arrangement, the Escrow Agreement and the Rights Indenture, including: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the Ample Articles; (ii) the exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to direct any votes with respect to the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; and (v) the defense and/or settlement of any claims for which the Ample Shareholder may be required to indemnify Akerna or Purchaser pursuant to this Agreement, the Shareholder Representative, by virtue of the entering into of this Agreement by the Shareholders shall constitute their ratification and approval of the appointment of the Shareholder Representative pursuant to this Agreement to act on behalf of the Indemnifying Parties, which shall include is hereby appointed as the power true, exclusive and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):
(i) lawful representative, attorney-in-fact and agent for purposes of this Article VII, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the each Ample Shareholder Representative for the accomplishment of the foregoing;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the Related Agreements and the consummation Plan of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated herebyArrangement.
(b) The Shareholder Representative may resign upon written notice is hereby authorized to make all decisions, take all actions or do any and all thing necessary relating to: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the Ample Articles; (ii) the exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to direct any votes with respect to the Surviving CorporationSpecial Voting Share, with in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or without causeany of them) are held in escrow pursuant to this Escrow Agreement, and the holders representing a majority of the Pro Rata Portions shall appoint a successor. Additionally, the number (if any) of Up-front Shares in respect of which each Ample Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement provide instructions with respect to the exercise of all any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; (v) the defense and/or settlement of any claims for which the Ample Shareholder Representative Expenses may be required to indemnify Akerna or Purchaser pursuant to Section 7.6(fthis Agreement; and (vi) hereof. The successor shall any and all additional actions contemplated to be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required of the Shareholder Representative, and taken by the Shareholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each on behalf of the Indemnifying PartiesAmple Shareholders (or any of them) pursuant to this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture.
(c) Akerna and Purchaser shall be able to rely conclusively on the instructions and decision of the Shareholder Representative as to any decision or act of the Shareholder Representative taken in accordance with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture and no party shall have any cause of action against Akerna or Purchaser for any action taken in reliance upon the instructions or decisions of the Shareholder Representative.
(d) No Ample Shareholder shall have any cause of action against the Shareholder Representative for any action taken, decision made or instruction given by the Shareholder Representative in accordance with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture, except for fraud or wilful breach by the Shareholder Representative of this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture. The Shareholder Representative shall not be liable to any Ample Shareholder for any act done action taken or omitted hereunder as Shareholder Representative while acting to be taken by them in connection with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture in good faith (and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representativetheir reasonable judgment.
(e) Parent The provisions of this Section 2.20 are independent and Subseverable, on behalf of all Indemnified Parties, hereby agree are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any noticeAmple Shareholder may have in connection with the transactions contemplated by this Agreement, rightthe Plan of Arrangement, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by Agreement or asserted by the Shareholder RepresentativeRights Indenture.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative Remedies available at law for any breach of this Section 2.20 are inadequate, therefore, Akerna, Purchaser and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct 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 any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses” and together with Earnout Representative Expenses, the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have be entitled to temporary and permanent injunctive relief without the right necessity of proving damages if either of them brings an action to recover Shareholder Representative Expenses from enforce the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms provisions of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata PortionsSection 2.20.
(g) The Shareholder Representative may engage attorneysprovisions of this Section 2.20 shall be binding upon the executors, accountantsheirs, investment bankerslegal representative, advisorspersonal representatives, consultants successors and clerical personnel and obtain such other professional and expert assistancepermitted assigns of each Ample Shareholder, and maintain such records, as any references in this Agreement to an Ample Shareholder or Ample Shareholders shall mean and include the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related successors to performing its services the Ample Shareholder’s rights hereunder, with whether pursuant to testamentary disposition, the fees laws of dissent and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared distribution or presented by such professionalsotherwise.
(h) The Shareholder Representative shall have reasonable access to information about Notwithstanding any other provision of this Agreement, the Company and the reasonable assistance appointment of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially be subject to and not disclose any nonpublic information from or about conditional upon receipt of the Surviving Corporation Ample Shareholder Approval and the approval by the Court of the Arrangement pursuant to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with Interim Order and shall keep Parent promptly informed of those individuals the Shareholder Representative shares such information withFinal Order.
(i) At Ample hereby covenants and agrees that on or prior to the Effective TimeDate, Parent Ample shall deposit or cause furnish to be deposited, by wire transfer the Shareholder Representative a certified copy of immediately available funds, the Representative Amount with true and complete shareholder register of Ample as of the Earnout Representative Effective Date (the “Representative FundEffective Date Register”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such distribution was an Escrow Release.
Appears in 1 contract
Samples: Arrangement Agreement (Akerna Corp.)
Shareholder Representative. (a) The approval of this Agreement by 9.13.1 As an additional condition to Purchaser and Parent's obligations hereunder, the Shareholders shall constitute their ratification and approval of will consent to the appointment of Ruth Xxxxxx xx serve as representative of the Shareholders ("Shareholder Representative") and the Shareholder Representative pursuant will agree to this Agreement so serve, to act on behalf of the Indemnifying Parties, which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):
(i) for purposes of this Article VII, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing;
(ii) Shareholders and in each such Shareholders' name, place and stead, in any and all capacities to execute do and deliver such waivers perform every act and consents thing required or permitted to be done in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all the other documents agreements contemplated hereby., as fully to all intents and purposes as such Shareholder might or could do in person, including, without limitation:
(a) determine the presence (or absence) of claims for indemnification against the Purchaser or Parent pursuant to Section 7.1 above;
(b) The deliver all notices required to be delivered by such Shareholder Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders representing a majority of the Pro Rata Portions shall appoint a successor. Additionally, the Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessorunder this Agreement including, without the need limitation, any notice of any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation a claim for his or her services. Notices or communications to or which indemnification is sought from the Shareholder Representative shall constitute notice to Purchaser or from each of the Indemnifying Parties.Parent under Article VII above;
(c) The receive all notices required to be delivered to such Shareholder Representative shall not be liable under this Agreement, including, without limitation, any notice of a claim for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.which indemnification is sought under Section 7.1 above;
(d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 take any and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(e) Parent and Sub, action on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct 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 any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses” and together with Earnout Representative Expenses, the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly from time to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata Portions.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, time as the Shareholder Representative may deem necessary or desirable to defend, pursue, resolve and/or settle claims under this Agreement, including, without limitation, indemnification under Section 7.1 above;
(e) enter into such amendments and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses waivers of this on behalf of such engagements and assistance considered Shareholder Representative Expenses. The from time to time as the Shareholder Representative may deem necessary or desirable;
(f) receive service of process on behalf of such Shareholder in good faith rely conclusively upon informationconnection with any legal proceedings related to this or any of the transactions contemplated hereby or thereby; and
(g) engage and employ agents and representatives (including accountants, reports, statements legal counsel and opinions prepared other professionals) and to incur such other expenses as the Shareholder Representative deems necessary or presented by such professionalsprudent in connection with the administration of the foregoing. Any additional details of the Shareholder Representatives' role and duties with regard to the Shareholders will be specified in the proxy materials soliciting Shareholder approval of the Merger.
(h) The 9.13.2 Each Shareholder grants unto the Shareholder Representative shall have reasonable access full power and authority to information about do and perform each and every act and thing necessary or desirable to be done in connection with the Company transactions contemplated by this Agreement as fully to all intents and the reasonable assistance of the Surviving Corporation’s officers purposes as such Person might or could do in person, hereby ratifying and employees for purposes of performing his duties and exercising his rights hereunder, provided confirming all that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with and shall keep Parent promptly informed of those individuals the Shareholder Representative shares such information with.
(i) At the Effective Time, Parent shall deposit may lawfully do or cause to be depositeddone by virtue hereof. Each Shareholder, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under executing this Agreement, he or she shall transfer any amounts remaining in agrees that such agency, proxy and power of attorney are coupled with an interest, and are therefore irrevocable without the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf consent of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for shall survive the death, incapacity, or bankruptcy of such Person. Each Shareholder acknowledges and agrees that, any delivery by the Shareholder Representative Expensesof any waiver, if anyamendment, agreement, opinion, certificate or other documents executed by the Shareholder Representative or any decisions made by the Shareholder Representative pursuant to the Effective Time Holders this Section 9.15, such Person shall be bound by such documents or decision as fully as if such distribution was an Escrow ReleaseShareholder had executed and delivered such documents or made such decisions.
Appears in 1 contract
