Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form. (b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. (c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 4 contracts
Samples: Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Shareholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Xxxxxxx Xx as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Shareholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Shareholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Shareholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Shareholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Shareholders from their obligation to promptly pay such Representative Xxxxxx as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Shareholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Shareholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 3 contracts
Samples: Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp)
Shareholders’ Representative. (a) The Selling PartiesBy executing this Agreement, each of the Shareholders hereby irrevocably constitutes and appoints Executive, acting as hereinafter provided, as his or her attorney-in-fact and agent in his or her name, place and steax xx connection with the transactions contemplated by adopting this Agreement and matters arising therefrom subsequent to the transactions contemplated herebydate hereof, and acknowledges that such appointment is coupled with an interest. By executing and delivering this Agreement, Executive hereby irrevocably appoint (i) accepts his appointment and constitute K Laser authorization as Shareholders' Representative to act as attorney-in-fact and agent in the name, place and stead of each of the Shareholders in accordance with the terms of this Agreement, and (ii) agrees to perform his duties and obligations hereunder.
(b) Each Shareholder authorizes the Shareholders’ ' Representative for in the name and on behalf of the Selling Parties, with the authority such Shareholder:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices any notice required or permitted under this Agreement;
(ii) to exercise any rights and communications, to take any action required or permitted to be taken under this Agreement;
(iii) to agree to, negotiate, enter into execute and provide amendments deliver any amendment to or modification of this Agreement or any of the provisions hereof and supplements any waiver or consent hereunder;
(iv) to dispute or to refrain from disputing any claim made by Parent or Subsidiary under this Agreement and waivers in respect any other agreements, instruments and documents to be delivered by or on behalf of such Shareholder pursuant to this Agreement;
(v) to negotiate and compromise any dispute which may arise, and to exercise or refrain from exercising remedies available under this Agreement and the Option Agreementother agreements, (iv) instruments and documents delivered or to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be delivered by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Shareholder pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to sign any releases or other documents with respect to any Selling Party such dispute or remedy; and
(vi) to give such instructions and to do such other things and refrain from doing such other things as the Shareholders' Representative shall deem necessary or appropriate to carry out the provisions of this Agreement and any other agreements, instruments and documents delivered or to be delivered by or on behalf of such Shareholder pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Merger Agreement (Saul Julian), Merger Agreement (Shaw Industries Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each of the Indemnifying Shareholders hereby appoints Xxxxxx X. Xxxxxxxxx as its agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser attorney-in-fact as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority Indemnifying Shareholders to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Parent (on behalf of himself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreements or any of the transactions and other matters contemplated hereby or thereby, (ii) authorize deliveries to Parent of cash or shares from the Cash Escrow Fund or the Stock Escrow Fund, as the case may be, in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to ARTICLE 7, (iii) object to such claims in accordance with Section 7.4, (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements to demand mediation and waivers in arbitration and comply with orders of courts and awards of arbitrators with respect of this Agreement and to, such claims, except for claims for indemnification made directly against the Option AgreementIndemnifying Shareholders, (ivv) bind such Indemnifying Shareholder to retain legal counselthe contract referenced in Section 7.8(c) pursuant to which the Shareholders’ Representative agrees on behalf of all Indemnifying Shareholders that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of a third-party claim, accountantsthe defense or settlement of which is controlled by the Shareholders’ Representative in accordance with Section 7.8, consultants and other expertsregardless of the limitations set forth in this ARTICLE 7, and incur any other reasonable expenses, in connection with, and (vi) Indemnifying Shareholder to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or that are specifically mandated by the terms of this Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance, and (vii) act as expressly set forth in this Agreement. K Laser hereby accepts The Shareholders’ Representative shall be the sole and exclusive means of asserting or addressing any of the above, and no former shareholder shall have any right to act on its appointment as own behalf with respect to any such matters, other than any claim or dispute against the Shareholders’ Representative. Such agency The Person serving as the Shareholders’ Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of held immediately prior to the Selling Parties from time to time Effective Time by the Indemnifying Shareholders upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Indemnifying Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to any Indemnifying Shareholder for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Indemnifying Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon consult with legal counsel, independent public accountants and other experts selected by it and shall be reimbursed by the informationIndemnifying Shareholders for the reasonable fees and expenses of such counsel, reports, statements accountants and opinions prepared or presented by counsel or other professionals retained by it, expects and any action taken other cost and expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about the foregoing provisions in this ARTICLE VIIICompany and the reasonable assistance of the Company’s former officers and employees for purposes of performing his duties and exercising its rights hereunder, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about the Company to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Shareholders’ Representative. Each of the Selling Shareholders (a) The Selling Partiesincluding the Former Company Share Award Holders), by adopting virtue of its, his or her execution and delivery of this Agreement (directly, by proxy or pursuant to a power of attorney), hereby irrevocably constitutes and appoints Xxxxx Xxxxx, a Principal and the Chief Executive Officer of the Company as of the date of this Agreement (the “Shareholders Representative”), to be such Selling Shareholder’s true and lawful representative, agent and attorney-in-fact to act on such Selling Shareholder’s behalf with respect to any actions permitted to be taken by such Selling Shareholder, or any of them, after the date of this Agreement in connection with this Agreement and the other Transaction Documents and the transactions contemplated herebyhereby and thereby, hereby irrevocably appoint in accordance with the terms and constitute K Laser conditions of the Transaction Documents. In such representative capacity, the Shareholders Representative shall take or refrain from taking, and the Selling Shareholders each agree that the Shareholders Representatives may take or refrain from taking, any and all actions which the Shareholders Representative reasonably believes, acting in good faith, to be necessary or appropriate under this Agreement and the other Transaction Documents (except as the Shareholders’ Representative provided above) for and on behalf of the Selling PartiesShareholders, with as fully and effectively as if the authority (i) to perform the obligations of the Shareholders’ Representative set forth Selling Shareholders were acting on their own behalf. Each reference in this Agreement or any other Transaction Document to an action to be taken by the Selling Shareholders shall, with respect to the Selling Shareholders, be taken by the Shareholders Representative on their behalf pursuant to this Section 7.18. Each Selling Shareholder hereby ratifies and confirms, and agrees to ratify and confirm in the future upon the request of the Shareholders Representative, any action taken by the Shareholders Representative in the exercise of the agency and power of attorney granted to the Shareholders Representative pursuant to this Section 7.18, which agency and power of attorney, being coupled with an interest, is irrevocable and a durable agency and power of attorney and shall survive the death, incapacity or incompetence of such Selling Shareholder. Each of Purchaser and the Option AgreementEscrow Agent shall be entitled to conclusively rely upon the directions, (ii) instructions and notice of the Shareholders Representative, when it is acting in their capacity as such under this Section 7.18, without being required to give undertake any independent investigation or verification, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers any notice provided in respect of accordance with this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Shareholders Representative in its capacity as such shall be conclusively deemed to Parent shall constitute notice have been provided to or from each of the Selling PartiesShareholders, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawas applicable. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholders Representative shall not be liable for have any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and liability to any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Selling Shareholders arising out of or relating to any action taken or omission made in good faith by the Shareholders Representative (in its capacity as such) pursuant to this Agreement, and each Selling Shareholder shall, severally but not jointly, indemnify, defend and hold harmless the Shareholders Representative with respect to all actions so taken or omissions made on behalf of such Selling Shareholder up to the net proceeds received by such Selling Shareholder in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithTransactions.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Share Purchase Agreement (Baidu, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect For purposes of this Agreement and the Option Escrow Agreement, the Sellers hereby designate Xxxxx Xxxxx, III, to serve as the sole and exclusive representative of the Sellers (ivthe “Shareholders’ Representative”) from and after the Closing Date with respect to retain legal counselthe matters set forth in this Agreement, accountants, consultants such service to be without compensation except for the reimbursement by the Sellers of out-of-pocket expenses and other experts, indemnification specifically provided herein. The Sellers shall be bound by any and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of taken by the Shareholders’ Representative for on their behalf, including without limitation payments made pursuant to Article 10 hereof. Notwithstanding anything to the accomplishment ofcontrary contained in this Agreement, any the Shareholders’ Representative shall have no duties or all responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of the foregoing. K Laser hereby accepts its appointment as Company or any Seller shall otherwise exist against the Shareholders’ Representative. Such agency may be changed by the holders of a majority Except as expressly provided in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from this Agreement, the Shareholders’ Representative shall have no duties or responsibilities to Parent shall constitute notice to Buyer or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formits Affiliates.
(b) The Shareholders’ Representative shall not promptly deliver to each Seller any notice received by the Shareholders’ Representative concerning this Agreement or the Escrow Agreement.
(c) Neither the Shareholders’ Representative nor any agent employed by the Shareholders’ Representative shall be liable to any Seller relating to the performance of such Shareholders’ Representative’s duties under this Agreement or the Escrow Agreement or for any act done errors in judgment, negligence, oversight, breach of duty or omitted hereunder otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders’ Representative constituted fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Sellers against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholders’ Representative is made a party by reason of the fact that the Shareholders’ Representative was acting as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)this Agreement; provided, according to each Selling Parties’ pro-rata interest in the shares of Everesthowever, indemnify that the Shareholders’ Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and hold it harmless against any loss, liability convincing evidence that the actions taken or expense incurred without gross negligence or bad faith on the part of not taken by the Shareholders’ Representative and arising out of constituted fraud or were taken or not taken in connection with the acceptance bad faith. The Shareholders’ Representative shall be protected in acting upon any notice, statement or administration of his duties hereunder. No provision of this Agreement shall require certificate believed by the Shareholders’ Representative to expend be genuine and to have been furnished by the appropriate Person and in acting or risk its own funds or otherwise incur refusing to act in good faith on any financial liability in matter. Neither the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith nor any agent employed by the Shareholders’ Representative shall be liable to Buyer or any Affiliate of Buyer by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise.
(d) Buyer shall be entitled to rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based as the duly authorized action of the Shareholders’ Representative on such reliance shall be deemed conclusively behalf of each Seller with respect to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary matter set forth in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power or authority . All notices to act with respect to matters pertaining be sent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Sellers pursuant to this Agreement and the Option AgreementEscrow Agreement may be addressed to the Shareholders’ Representative only, and any notice so sent shall be deemed notice to all of the Sellers hereunder. The Sellers hereby consent and agree that the Shareholders’ Representative is authorized to accept notice on behalf of all of the Sellers pursuant hereto.
(iie) alters The Shareholders’ Representative is hereby appointed and constituted the consideration payable true and lawful attorney-in-fact of each Seller, with full power in its name and on its behalf to any Selling Party pursuant act according to the terms of this Agreement in the absolute discretion of the Shareholders’ Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, waivers, amendments, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted in consideration of the Option Agreementmutual covenants and agreements made herein, or (iii) adds to or results in an increase and shall be irrevocable and shall not be terminated by any act of any Selling Party’s indemnity Seller or by operation of Law, whether by death or any other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Shareholders’ Representative. (a) The Xxxxxxx Xxxxxxxxx (such person and any successor or successors being the “Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Shareholders Representative”) shall act as the representative of the Selling Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders to take any and all actions required or permitted to be taken by the Selling Shareholders Representative under this Agreement and with respect to any claims (including the settlement thereof) made by a Investor Indemnified Party for indemnification pursuant to this Article VIII, with the authority including (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (ii) take all actions necessary or appropriate in the judgment of the Shareholders’ Selling Shareholders Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as In all matters relating to this Article VIII, the Shareholders’ Representative. Such agency may Selling Shareholders Representative shall be changed by the holders of a majority in interest of only party entitled to assert the shares of Everest rights of the Selling Shareholders, and the Selling Shareholders Representative shall perform all of the obligations of the Selling Shareholders under this Article VIII. The Investor Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Selling Shareholders Representative. The Selling Shareholders Representative may resign upon not less than twenty (20) business days’ prior written notice to Investors and the Selling Shareholders. The Selling Shareholders by the vote of a majority-in-interest of their respective Pro Rata Portions may remove the Selling Shareholders Representative from time to time upon not less than ten twenty (1020) business days’ prior written notice to all Investors. Any vacancy in the position of the Selling Parties and to Parent and Purchaser. No bond shall Shareholders Representative may be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each filled by a majority-in-interest of the Selling PartiesShareholders (based on their respective Pro Rata Portions), except for notices related subject to any action for the consent of the Investors (which consent shall not be unreasonably withheld, conditioned or delayed). Any successor Selling Shareholders Representative shall acknowledge in writing to the Investors his or her acceptance of his or her appointment as Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Shareholders Representative, including in electronic form.
(b) The Selling Shareholders shall be bound by all actions taken by the Selling Shareholders Representative in his capacity thereof, except for any action that conflicts with the limitations set forth in Section 8.05(d) below. The Selling Shareholders Representative shall promptly, and in any event within ten (10) business days, provide written notice to the Selling Shareholders of any action taken on behalf of them by the Selling Shareholders Representative pursuant to the authority delegated to the Selling Shareholders Representative under this Section 8.05. The Selling Shareholders Representative shall at all times act in his or her capacity as Selling Shareholders Representative in a manner that the Selling Shareholders Representative believes to be in the best interest of the Selling Shareholders’ . Neither the Selling Shareholders Representative nor any of his or her affiliates shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of his gross negligence, bad faith or willful misconduct. The Selling Shareholders Representative may consult with legal counsel, independent public accountants and other experts selected by him or her. The Selling Shareholders Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement, the Selling Shareholders Representative shall not exercise any discretion or take any action.
(c) Each Selling Shareholder shall, severally and not jointly (based on his or her Pro Rata Portion), hold harmless and reimburse the Selling Shareholders Representative from and against such Selling Shareholder’s ratable share (based on his or her Pro Rata Portion) of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Selling Shareholders Representative arising out of or resulting from any action taken or omitted to be taken by the Selling Shareholders Representative under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Selling Shareholders Representative) arising out of or resulting from the Selling Shareholders Representative’s gross negligence, bad faith or willful misconduct; provided, however, that no such Selling Shareholder shall be liable in excess of an amount equal to the number of Special Shares sold by such Selling Shareholder to the Purchaser under Article I multiplied by the Per Share Price. The Selling Shareholders Representative shall not be liable entitled to any compensation for any act done or omitted hereunder as the Shareholders’ Representative while acting his services in good faith and without negligence and any act done or omitted pursuant such capacity.
(d) Notwithstanding anything to the advice of counsel contrary herein, the Selling Shareholders Representative, in his or her capacity as such, is not authorized to, and shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)not, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement accept on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and Shareholder any action taken by the Shareholders’ Representative based on consideration to which such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to Shareholder is entitled under this Agreement and the Option AgreementSelling Shareholders Representative, (ii) alters the consideration payable to in his or her capacity as such, shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Company now or hereafter owned of record or beneficially by any Selling PartiesShareholder unless the Selling Shareholders Representative is expressly authorized to do so in a writing signed by such Selling Shareholder.
Appears in 2 contracts
Samples: Class a Preferred Share Purchase Agreement (PointClickCare Corp.), Class a Preferred Share Purchase Agreement (PointClickCare Corp.)
Shareholders’ Representative. (a) The Selling PartiesImmediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, each AeroAstro Shareholder shall be deemed to have consented to and irrevocably constituted and appointed Xx. Xxxx Xxxxxxx (the “Shareholders’ Representative”) to act as such AeroAstro Shareholder’s true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and xxxxx, in any and all capacities, to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by adopting this Agreement, including but not limited to: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof to the transactions AeroAstro Shareholders and others, as contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in by this Agreement and the Option Agreement, (ii) to give and receive notices and communications, ; (iii) receipt and forwarding of notices and communications pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect this Agreement; (iv) administration of the provisions of this Agreement and the Option Escrow Agreement; (v) giving or agreeing to, (iv) to retain legal counselon behalf of the AeroAstro Shareholders, accountantsany and all consents, consultants and other expertswaivers, and incur any other reasonable expensesamendments or modifications deemed by the Shareholders’ Representative, in connection withhis discretion, to be necessary or appropriate under this Agreement and to take all actions the execution or delivery of any documents that may be necessary or appropriate in the judgment connection therewith; (vi) subject to Delaware Law, amending this Agreement (other than this Section 1.12), or any of the instruments to be delivered to Radyne or Merger Sub pursuant to this Agreement; (vii) disputing or refraining from disputing, on behalf of the AeroAstro Shareholders’ Representative for the accomplishment of, any claim made by Radyne, Merger Sub or the Surviving Corporation under this Agreement and any and all agreements and documents required or contemplated by this Agreement (“Transaction Documents”); (viii) negotiating and compromising, on behalf of each such AeroAstro Shareholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents; (ix) executing, on behalf of each such AeroAstro Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; and (x) engaging attorneys, accountants, agents or consultants on behalf of the foregoingAeroAstro Shareholders in connection with the Transaction Documents and paying any fees related thereto. K Laser If, for any reason, Xx. Xxxxxxx is incapacitated or unable to act, Xxxxxx X. Xxxxx is hereby accepts its appointment appointed as his successor to act as the Shareholders’ Representative. Such agency may Radyne shall be changed entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions taken by the holders incumbent Shareholders’ Representative until such time as Radyne receives actual notice of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) dayssuch Shareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative’s death or incapacity. No bond Radyne shall be required entitled to rely upon the response of the Shareholders’ RepresentativeRepresentative in all matters pertaining to the subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, or obtained from, the AeroAstro Shareholders. Notices or communications Notice to or from service upon the Shareholders’ Representative shall be deemed to Parent constitute good and sufficient notice or service upon all of the AeroAstro Shareholders for all matters, including without limitation, all notices of or demands for legal processes. Notwithstanding the foregoing, in the event that the Shareholders’ Representative, with the advice of counsel, is of the opinion that he requires further authorization or advice from the AeroAstro Shareholders on any matters concerning this Agreement or the Transaction Documents, the Shareholders’ Representative shall be entitled to seek such further authorization from the AeroAstro Shareholders prior to acting on their behalf. In such event, each AeroAstro Shareholder shall have a number of votes equal to the number of shares of AeroAstro Common Stock held by such AeroAstro Shareholder immediately prior to the Effective Time and the authorization of a majority of such number of votes shall be binding on all of the AeroAstro Shareholders and shall constitute notice to or from each the authorization of the Selling PartiesAeroAstro Shareholders.
(b) Immediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, the following provisions of this Section 1.12(b) shall be binding upon and enforceable against each AeroAstro Shareholder by the Shareholders’ Representative:
(i) Neither the Shareholders’ Representative nor any of AeroAstro’s directors, officers, agents or employees, if any, shall be liable to any AeroAstro Shareholder for any error of judgment, or any action taken, suffered or omitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, except for notices related in the case of his gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any action for which of the Selling Parties’ consent is required under the terms terms, covenants or conditions of this Agreement or applicable lawthe Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholders’ Representative shall not exercise any discretion or take any action. Each Selling Party agrees AeroAstro Shareholder shall indemnify and hold harmless and reimburse the Shareholders’ Representative from and against such AeroAstro Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholders’ Representative arising out of or resulting from any action taken or omitted to receive correspondence be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, including in electronic form.bad faith or willful misconduct; and
(bii) The Shareholders’ Representative shall not be liable entitled to any fee, commission or other compensation for any act done or omitted the performance of his services hereunder but shall be entitled to the payment of all his expenses incurred as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant Representative. In connection with the foregoing, at the Closing, Radyne shall deliver to the advice Shareholders’ Representative, for the benefit of counsel shall the AeroAstro Shareholders, $150,000 of the Cash Consideration (the “Expense Fund”) by wire transfer of immediately available funds to an account designated in writing by the Shareholders’ Representative, to be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify used by the Shareholders’ Representative to pay expenses incurred by the Shareholders’ Representative in his capacity as the Shareholders’ Representative. Once the Shareholders’ Representative determines, in his sole discretion, that the Shareholders’ Representative will not incur any additional expenses in his capacity as the Shareholders’ Representative, the Shareholders’ Representative shall distribute the remaining unused Expense Fund, if any, pro rata to the AeroAstro Shareholders (less any amounts required to be withheld under foreign, federal, state or local laws). The AeroAstro Shareholders, including without limitation, the Shareholders’ Representative, acknowledge and hold it harmless against agree that neither Radyne nor AeroAstro shall have any lossliability regarding the allocation and distribution of the Expense Fund pursuant to this Section 1.12(b)(ii).
(iii) The foregoing Sections 1.12(b)(i) and (ii) represent an agreement solely among the AeroAstro Shareholders and the Shareholders’ Representative, liability and Sections 1.12(b)(i) and (ii) shall not be binding upon Radyne, Merger Sub or expense incurred AeroAstro.
(c) The adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders shall also be deemed to constitute approval by the AeroAstro Shareholders of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the AeroAstro Shareholders, including, without gross negligence or bad faith on limitation, the part provisions of this Section 1.12, the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount in escrow, the appointment of the Shareholders’ Representative and arising out the provisions of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSection 8.2.
(cd) Notwithstanding the foregoing provisions in In this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative term “Per Share Expense Fund Amount” shall only have be the power or authority to act with respect to matters pertaining to Expense Fund divided by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way number of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesFully Diluted Shares.
Appears in 2 contracts
Samples: Merger Agreement (Radyne Corp), Merger Agreement (Radyne Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Sellers and the transactions contemplated hereby, Shareholders hereby irrevocably constitute and appoint and constitute K Laser as the Shareholders’ Representative for as their true and lawful attorney-in-fact and agent with full power of substitution to: (i) accept on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Sellers and the Option Agreement, Shareholders service of process and any notices required to be served on any Shareholders; and (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary to be taken by Sellers or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofShareholders under this Agreement, including to deliver notices to be served on Buyers by any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties such Party and to Parent control the defense and Purchaser. No bond shall be required settlement of the Shareholders’ Representative. Notices any and all claims for indemnification by any Buyer Parties against any Seller or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required Shareholder under the terms Article 10 of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and each Shareholder hereby agree that: (i) in all matters in which action by the Shareholders’ Representative while acting in good faith and without negligence and any act done is required or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)permitted, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative is authorized to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement act on behalf of Sellers and the Shareholders, notwithstanding any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared dispute or presented by counsel disagreement among any Seller or other professionals retained by itany Shareholder, and any Buyer Party will be entitled to rely on any and all action taken by the Shareholders’ Representative based under this Agreement without any liability to, or obligation to inquire of, any Seller or any Shareholder, notwithstanding any knowledge on the part of any Buyer Party of any such reliance shall dispute or disagreement; (ii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 11.4, will be deemed conclusively to be notice to Sellers and all Shareholders for the purposes of this Agreement; (iii) the power and authority of the Shareholders’ Representative, as described in this Agreement, will continue in full force until all rights and obligations of Sellers and the Shareholders under this Agreement will have terminated, expired or been taken in good faithfully performed.
(c) Notwithstanding Sellers and each Shareholder agree that, notwithstanding the foregoing provisions in this ARTICLE VIIIforegoing, at the request of Buyers, each Seller or any provision such Shareholder will take all actions necessary or appropriate to consummate the transaction contemplated hereby individually on such Seller’s or Shareholder’s own behalf, and delivery of each and every document required of such Seller or Shareholder pursuant to the contrary set forth in this Agreement or terms hereof.
(d) In the Option Agreement, event that the Shareholders’ Representative shall only have dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, then the power or authority Shareholders then holding a majority of the outstanding shares of DSI will select another representative to act with respect fill such vacancy and such substituted representative will be deemed to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on be the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision for all purposes of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party documents delivered pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieshereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting Upon approval of the Merger and this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest the Company Common Stock under applicable Law, each of the shares of Everest of Former Company Shareholders will be deemed to have irrevocably appointed SpinCo, as its, his or her true and lawful attorney-in-fact and agent (the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the “Shareholders’ Representative. Notices ”), with full power of substitution or communications resubstitution, to or from act solely and exclusively on behalf of such Former Company Shareholder with regard to matters pertaining to (i) the Shareholders’ Representative indemnification by the Former Company Shareholders referred to Parent shall constitute notice in this Article VII, including the power to or from each compromise any Claim on behalf of the Selling Partiessuch Former Company Shareholder, except for notices related to any action for which the Selling Parties’ consent is required and (ii) all matters under the terms of this Escrow Agreement or applicable law. Each Selling Party agrees relating to receive correspondence from the Shareholders’ Representative, including in electronic formEscrow Shares.
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. By their appointment of the Shareholders’ Representative, the Former Company Shareholders thereby confirm all that the Shareholders’ Representative shall do or cause to be done by virtue of its appointment as the representative of the Former Company Shareholders hereunder. The Shareholders’ Representative shall act for the Former Company Shareholders on all of the matters set forth in this Article VII and the Escrow Agreement in the manner the Shareholders’ Representative believes to be in the best interest of the Former Company Shareholders and consistent with the obligations of the Former Company Shareholders under this Article VII and the Escrow Agreement, but the Shareholders’ Representative shall not be liable responsible to any Former Company Shareholder for any act done or omitted hereunder as damages which the Shareholders’ Representative while acting in good faith and without negligence and Former Company Shareholders may suffer by the performance (including any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part damages arising out of the Shareholders’ Representative and arising out Representative’s negligence) of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Representative’s duties hereunder, other than damages arising from willful violation of applicable Law or risk its own funds or otherwise incur any financial liability willful misconduct in the exercise or performance of any of its powers, rights, such duties or privileges under this Agreement on behalf of any Selling Partieshereunder. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared shall not have any duties or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary responsibilities except those expressly set forth in this Agreement or the Option Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall pay all of the expenses incurred by the Shareholders’ Representative in performing its duties hereunder. The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Former Company Shareholder or Parent, or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall only have the power or authority be entitled to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the advice of counsel selected by it.
(c) The Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in is an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) intended beneficiary of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties7.8.
Appears in 2 contracts
Samples: Merger Agreement (Smith Investment Co), Merger Agreement (Smith a O Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Xx. X. X. Xxxxx shall be constituted and appointed as agent (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”) for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) MegaSys Shareholders to give and receive notices and communications, (iii) to authorize delivery to Iveda of payments from the MegaSys Shareholders in satisfaction of claims by Iveda to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All actions of the Shareholders’ RepresentativeRepresentative shall be taken jointly, not individually. Such agency may be changed by the holders action of the MegaSys Shareholders holding a majority in interest of the shares of Everest MegaSys as of immediately prior to the Selling Parties Effective Time from time to time upon not less than ten (10) 10 days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIveda. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the MegaSys Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties MegaSys Shareholders shall severally (and not jointly)pro rata, according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their Pro Rata Portion, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about MegaSys and Iveda and the foregoing provisions in reasonable assistance of MegaSys’ and Iveda’s officers and employees for purposes of performing its duties and exercising its rights under this ARTICLE VIIIArticle IX, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about MegaSys or Iveda to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Share Exchange Agreement (Iveda Solutions, Inc.), Share Exchange Agreement (Iveda Solutions, Inc.)
Shareholders’ Representative. Each of the Shareholders has previously made, constituted and appointed, and hereby irrevocably makes, constitutes and appoints Xxxxxx as his agent and representative and attorney-in-fact (the "Shareholders' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to:
(a) Receive all notices or documents given or to be given to him by the Company pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder;
(b) Deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration;
(c) Sign and deliver to the Company at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder;
(d) Deliver to the Company at the Closing all certificates and documents to be delivered to the Company by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose;
(e) Engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions described herein as the Shareholders' Representative may deem appropriate; and
(f) Take such action on behalf of such Shareholders as the Shareholders' Representative may deem appropriate in respect of:
(i) Waiving any inaccuracies in the representations or warranties of the Company contained in this Agreement or in any document delivered by it pursuant hereto;
(ii) Waiving the fulfillment of any of the conditions precedent to the Shareholders' obligations hereunder;
(iii) Taking such other action as he is authorized to take under this Agreement;
(iv) Receiving all documents or certificates and making all determinations on behalf of the Shareholders required under this Agreement; and
(v) All such other matters as the Shareholders' Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations . The appointment of the Shareholders’ ' Representative set forth hereunder is irrevocable and is deemed coupled with an interest and any action taken by Shareholders' Representative pursuant to the authority granted in this Agreement Section 9.1 shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the Option Agreement, (ii) to give prior authority and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment agency of the Shareholders’ Representative for the accomplishment of, any or all ' Representative. Each of the foregoing. K Laser hereby accepts its appointment as Shareholders agree that the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as failure to consummate the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of transactions described herein or in connection with the acceptance or administration performance of his duties hereunder. No provision of this Agreement shall require except for the Shareholders’ Representative to expend ' Representative's fraud or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good bad faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Morgan Gary D), Stock Purchase Agreement (Win Gate Equity Group Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative Escrow Agreement, stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive disbursements from the Option Escrow Fund pursuant to the Escrow Agreement and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts held under the Escrow Agreement, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to direct the Escrow Agent to disburse funds from the Escrow Fund and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon termination of Sellers' obligations pursuant to Article VIII. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from Sellers, with each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively Seller to have been taken in good faiththat number of votes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement (KMG America CORP), Stock Purchase Agreement (KMG America CORP)
Shareholders’ Representative. Each Principal Shareholder hereby irrevocably constitutes and appoints Erxx Xxxx (a) The Selling Partiesthe “Shareholders’ Representative”), by adopting as such Principal Shareholder’s agent and attorney-in-fact, with full power and authority to act, including full power of substitution, in his, her or its name and on his, her or its behalf with respect to all matters arising from or in any way relating to this Agreement and any other agreement entered into in connection with this Agreement (including the transactions contemplated herebyAncillary Agreements) or the Transaction, hereby irrevocably appoint including to do all things and constitute K Laser to perform all acts required or deemed advisable, in its sole discretion, in connection with the Transaction as fully as such Principal Shareholder could if then personally present and acting alone. Without limitation, (i) any communication or other delivery validly delivered to the Shareholders’ Representative shall be deemed to have been validly delivered to each Principal Shareholder, (ii) any consent given or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement, by the Shareholders’ Representative shall be binding upon each and every Principal Shareholder, and (iii) except as otherwise provided in Section 11.1, the Shareholders’ Representative is hereby authorized to execute for and on behalf of the Selling Parties, each Principal Shareholder any amendment to this Agreement or any other agreement entered into in connection with the authority (i) to perform the obligations this Agreement. This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Principal Shareholder or by operation of law. Neither the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and nor any agent employed by it shall incur any other reasonable expenses, in connection with, and Liability to take all actions necessary any Principal Shareholder by virtue of the failure or appropriate in the judgment refusal of the Shareholders’ Representative for any reason to consummate the accomplishment ofTransaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Principal Shareholders, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time jointly and severally, agree to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from indemnify the Shareholders’ Representative, including in electronic form.
his successors, assigns, agents, attorneys and affiliates (b) The the “Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Parties”) and to hold the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossand all losses, liability Liabilities or expense expenses incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the as Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in Representative, including the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reasonable costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithdefending against any claim or Liability in connection herewith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Mimvi, Inc.)
Shareholders’ Representative. (a) The Selling Parties11.13.1 Each Shareholder hereby irrevocably appoints the Shareholders’ Representative as his, by adopting her or its attorney-in-fact and agent to take any and all action and to execute any and all documents on such Shareholder’s behalf with respect to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement other Transaction Documents and the Option transactions provided for herein or therein, including the making and execution of any amendments to this Agreement, (ii) to give and receive the giving of any notices and communicationspursuant hereto, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants compromise or settlement of any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency disputes which may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related hereafter arise pursuant to any action for which the Selling Parties’ consent is required under the terms provision of this Agreement or applicable lawany other Transaction Document or the transactions provided for herein or therein. Each Selling Party agrees This appointment is irrevocable and coupled with an interest and shall not be affected by the death, incapacity, illness, dissolution or other inability to receive correspondence from act of any of the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall hereby accepts such appointment.
11.13.2 Each Shareholder that is not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith a Trust hereby agrees joint and without negligence and any act done or omitted pursuant severally to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and to hold it the Shareholders’ Representative harmless against from any loss, liability or expense incurred without willful violation of the Law or gross negligence by the Shareholders’ Representative arising out of, or bad faith on in connection with, his duties as Shareholders’ Representative, including the part costs, fees and expenses incurred by the Shareholders’ Representative in defending against any claim or liability in connection therewith.
11.13.3 The Shareholders’ Representative shall and hereby agrees to serve without compensation.
11.13.4 The Shareholders’ Representative shall and hereby agrees to keep the Shareholders informed of all notices received by the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ Representative based on within a reasonable period of time after such reliance receipt or such action, as the case may be.
11.13.5 The Purchaser and the Escrow Agent shall be deemed able to rely conclusively to have been taken in good faith.
(c) Notwithstanding on the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, instructions and decisions of the Shareholders’ Representative as to any actions required or permitted to be taken by the Shareholders hereunder or the other Transaction Documents, and no Party shall only have any cause of action against the power Purchaser or authority to act with respect to matters pertaining the Escrow Agent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way extent that either Purchaser or the Escrow Agent, respectively, has relied upon the instructions or decisions of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint Rxxxx Xxxxxx (the “Shareholders’ Representative”) to act on behalf of the Shareholders with respect to all matters relating to this Article VII and constitute K Laser as the Escrow Agreement, including in considering and certifying the amount of any indemnification hereunder, in determining the post-closing purchase price adjustment pursuant to Section 1.4 hereof, in communicating with the Shareholders in appointing a successor escrow agent under the Escrow Agreement, in considering and acting with respect to any amendment or termination of this Agreement, and generally in performing all acts expressly required or permitted to be performed by the Shareholders’ Representative for pursuant hereto and pursuant to the Escrow Agreement. Lincoln Electric on behalf of the Selling Partiesone hand, and Lincoln Electric and the escrow agent on the other hand, shall have the right to deal exclusively with the authority (i) Shareholders’ Representative with respect to perform all matters hereunder and under the obligations Escrow Agreement, respectively, and neither Lincoln Electric nor the escrow agent shall have any liability to any Shareholder for any acts or omissions of the Shareholders’ Representative set forth in this Agreement and Representative, or any acts or omissions taken or not taken by Lincoln Electric or the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and escrow agent at the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required direction of the Shareholders’ Representative. Notices or communications Upon any distribution of funds to or from the Shareholders’ Representative (or to Parent shall constitute notice to one or from each more of the Selling PartiesShareholders upon written instruction of the Shareholders’ Representative) in accordance with the Agreement, the escrow agent and Lincoln Electric shall be deemed to have fully satisfied any and all obligations to the Shareholders under this Agreement and the Escrow Agreement with respect to the amount of such distribution. The Shareholders’ Representative shall have no liability to the Companies or the Shareholders with respect to actions taken or omitted to be taken in her capacity as the Shareholders’ Representative, except for notices related with respect to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability resulting primarily from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for entitled to rely upon any act done or omitted hereunder as directions received from holders (the “Majority Holders”) of a majority of the Shares. If the Shareholders’ Representative while acting in good faith and without negligence and any act done is unable or omitted pursuant unwilling to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his perform her duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges required under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Escrow Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesMajority Holders shall promptly appoint a successor Shareholders’ Representative.
Appears in 1 contract
Samples: Share Purchase Agreement (Lincoln Electric Holdings Inc)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Xxxxxx XxXxx as the Shareholders’ Representative (the “Shareholders’ Representative”) to serve as the Shareholders’ agent and attorney-in-fact for and on behalf the limited purposes set forth in this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders’ Representative as such Shareholder’s agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder’s behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, ; (ii) to give and receive notices and communications, disburse any funds received hereunder to the Shareholders; (iii) to agree to, negotiate, enter into execute and provide amendments and supplements to and waivers in respect deliver on behalf of each Shareholder any amendment of or waiver under this Agreement and the Option Agreement, and to agree to resolution of all Claims hereunder; (iv) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection with, and to take all actions necessary or appropriate in with the judgment of performance by the Shareholders’ Representative for the accomplishment of, any or of this Agreement including without limitation all actions taken on behalf of the foregoing. K Laser hereby accepts its appointment Shareholders as an Indemnifying Party pursuant to Section 10.3; and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith (including without limitation initialing on the Shareholders’ Representativebehalf acceptance of WCI’s disclaimers of warranty in Section 4.7). Such agency may be changed by the holders of a majority in interest Each of the shares of Everest of Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of shall survive the death, bankruptcy or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance other incapacity of any Shareholder.
(c) Each of its powers, rights, duties the Shareholders hereby agrees that any amendment or privileges waiver under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itAgreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any Claim (including any action taken to object to, defend, compromise or agree to the payment of such Claim), shall be effective if approved in writing by the Shareholders’ Representative based on such reliance Representative, and that STOCK PURCHASE AGREEMENT HLE each and every action so taken shall be deemed conclusively to have been taken in good faithbinding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, Xxxxxx XxXxx shall serve as the Shareholders’ Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders’ Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall only have select, by the power or authority to act with respect to matters pertaining vote of the holders of a majority of the Corporation’s Stock immediately prior to the Selling Parties as Closing, a group successor representative to fill such vacancy, shall provide prompt written notice to WCI of such change and not matters pertaining such substituted representative shall then be deemed to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on be the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision for all purposes of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. (a) The Selling PartiesEach Shareholder, by adopting virtue of the adoption of this Agreement and approval of the Merger by the Shareholders (regardless of whether or not all Shareholders vote in favor of or consent to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Xxxxxx Xxxxxxxxxx (the “Shareholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Shareholders and their respective successors shall be deemed to have approved, and shall be bound by, any and all actions taken by the Shareholders’ Representative for and on their behalf of the Selling Parties, with the authority (i) under or otherwise relating to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement other documents contemplated hereby and the Option Agreement, (iv) to retain legal counsel, accountants, consultants transactions contemplated hereunder and other experts, thereunder as if such actions were expressly ratified and incur confirmed by each of them in writing. In the event any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofis unable or unwilling to serve or shall resign, any or all of the foregoing. K Laser hereby accepts its appointment as the a successor Shareholders’ Representative. Such agency may Representative shall be changed selected by the holders of a majority in interest of the shares of Everest Company Common Stock outstanding immediately prior to the Closing. A Shareholders’ Representative may not resign, except upon thirty (30) days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Shareholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Shareholders’ Representative, the successor shall be deemed to be the executor or other representative of such Shareholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Shareholders’ Representative. No resignation, nor any other replacement, of any Shareholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Shareholders’ Representative assumes in writing all obligations of the Selling Parties from time original Shareholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to time the proposed successor Shareholders’ Representative (such consent not to be unreasonably withheld or delayed). Each successor Shareholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon not less than ten the original Shareholders’ Representative.
(10b) daysParent and Merger Sub shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Shareholders’ prior written Representative on behalf of the Shareholders. All communications or writings to be sent to the Shareholders pursuant to this Agreement may be addressed to the Shareholders’ Representative and any communication or writing so sent shall be deemed notice to all of the Selling Parties Shareholders hereunder. The adoption and approval of this Agreement by the holders of the Company Stock shall constitute the consent and agreement of each of the Shareholders that the Shareholders’ Representative is authorized to Parent accept deliveries, including any notice, on behalf of each holder of Company Stock pursuant hereto.
(c) The Shareholders’ Representative is hereby appointed and Purchaser. No bond shall be required constituted the true and lawful attorney-in-fact of each holder of Company Stock, with full power of substitution in such holder’s name and on such holder’s behalf to act according to the terms of this Agreement and the other documents contemplated hereby in the absolute discretion of the Shareholders’ Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable in connection with this Agreement and the other documents contemplated hereby, including without limitation Article IX hereof. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Shareholders’ Representative to Parent shall constitute notice to or from each interest of the Selling Partiesother holders of Company Stock hereunder and in consideration of the mutual covenants and agreements made herein, except for notices related to and shall be irrevocable and shall not be terminated by any action for which the Selling Parties’ consent is required under the terms act of this Agreement any Shareholder or applicable operation of law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formwhether by such holder’s death or disability or by any other event.
(bd) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder hereby acknowledges and agrees to serve as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection accordance with the acceptance or administration of his duties hereunderapplicable terms hereof and to be bound by such terms. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option AgreementAt Parent’s request, the Shareholders’ Representative shall only have the power or authority enter into an agreement in form and substance reasonably satisfactory to act with respect to matters pertaining to the Selling Parties as a group Parent and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower which the Shareholders’ Representative acknowledges and agrees to do or cause serve as a Shareholders’ Representative and to be done any action (including bound by amending, modifying or waiving any provision the applicable terms of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtwithout limitation, any change to the nature of the indemnity obligationsSection 6.3), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Sourcefire Inc)
Shareholders’ Representative. (a) The Selling PartiesShareholders irrevocably nominate, by adopting this Agreement constitute and appoint Xxxxx X. Xxxxx as their representative (the transactions contemplated hereby"Shareholders' Representative"), and Xxxxx X. Xxxxx hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ ' Representative. Purchaser shall be entitled to deal exclusively with the Shareholders' Representative for on all matters relating to this Agreement or any other Transaction Document, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Selling PartiesShareholders' Representative, with the authority (i) as fully binding upon such Shareholder; provided, that in respect of indemnification claims under this Article VIII that relate to perform the obligations one or more Shareholders, but not all of the Shareholders’ , Purchaser shall deal with the Shareholder or Shareholders subject to the indemnification claims and may not rely solely on actions taken by the Shareholders' Representative. If the Shareholders' Representative set forth in this Agreement and shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the Option AgreementShareholders, (ii) to give and receive notices and communicationsthe Shareholders shall, (iii) to agree towithin twenty days after such death or disability, negotiateappoint a successor representative and, enter into and provide amendments and supplements to and waivers in respect promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the "Shareholders' Representative" for purposes of this Agreement and the Option Agreementother Transaction Documents. If for any reason there is no Shareholders' Representative at any time, (iv) to retain legal counsel, accountants, consultants and other experts, and incur all references herein or in any other reasonable expenses, in connection with, and Transaction Document to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as shall be deemed to refer to the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders agree that the actions taken by the Shareholders’ ' Representative pursuant to the terms of this Section 8.10 shall be fully binding on them. The Shareholders' Representatives shall not be liable to any Shareholder or any other party for any act done action taken or omitted hereunder to be taken by him as a Shareholders' Representative except in the Shareholders’ Representative while acting in good faith and without negligence and any act done case of willful misconduct or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of gross negligence. The Selling Parties Shareholders shall severally (and not jointly), according to jointly indemnify each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it harmless from and against any loss, liability or expense of any nature incurred without gross negligence by such Shareholders' Representative, including reasonable legal fees and other costs and expenses of defending or bad faith on the part of the Shareholders’ Representative and arising out of preparing to defend against any claim or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise premises, unless such loss, liability or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance expense shall be deemed conclusively to have been taken in good faithcaused by such Shareholders' Representative's willful misconduct or gross negligence.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) From and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. Participating Equity Holders for the purposes of this Agreement. The Selling PartiesParticipating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by adopting this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated herebyhereby and, hereby irrevocably appoint in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and constitute K Laser as (iii) file and prosecute appeals from any judgment rendered in any of the Shareholders’ Representative foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for and the Independent Accountant or any other payment on behalf of the Selling Parties, with Participating Equity Holders pursuant to the authority terms of this Agreement;
(ivii) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to consent or agree to, negotiate, enter into into, prosecute or defend, settlements and provide amendments compromises of, and supplements demand arbitration and comply with Orders of Governmental Authorities or 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 contemplated by this Agreement, by arbitration, settlement or otherwise, and waivers take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in respect [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement;
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the Option Agreement, manner provided herein;
(ivx) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. K Laser hereby accepts its appointment as Parent Group and their respective Affiliates (including after the Shareholders’ Representative. Such agency may be changed by Effective Time, the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10Surviving Corporation) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications entitled to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify rely on the Shareholders’ Representative and hold it harmless against treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any losscash payment or distribution to the Participating Equity Holders on and after the date hereof, liability or expense incurred without gross negligence or bad faith on the part amount of any fee payable to the Shareholders’ Representative and arising out of any reasonable cost and expense incurred directly or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken indirectly by the Shareholders’ Representative based on such reliance shall be deemed conclusively in connection with its obligations hereunder or relating to have the transactions contemplated hereby to the extent the Expense Fund has been taken depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in good faitheach case to the extent of each of the Participating Equity Holders’ respective interests therein.
(cxiii) Notwithstanding In connection with the foregoing provisions in this ARTICLE VIII, or any provision to performance of its obligations hereunder and under the contrary set forth in this Paying Agent Agreement or and the Option Escrow Agreement, the Shareholders’ Representative shall only have the power right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or authority to act with respect to matters pertaining to the Selling Parties consultants and obtain such other professional and expert assistance (in all cases as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreementreasonably necessary), and the powers conferred on maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative herein and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the Option Agreement shall not authorize purposes of paying directly, or empower reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to do or cause this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be done liable for any action (including by amending, modifying or waiving any provision loss of this Agreement or principal of the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner Expense Fund other than as permitted pursuant a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to this Agreement its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Option Agreement, (ii) alters Participating Equity Holders at the consideration payable time of Closing. Any funds remaining in the Expense Fund shall be distributed to any Selling Party pursuant to this Agreement or the Option AgreementParticipating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or (iii) adds to or results at such earlier time as the Shareholders’ Representative may determine in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesits sole discretion.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Xicom Shareholders hereby irrevocably constitute and appoint and constitute K Laser as Wxxxxx X. Xxxx (the “Representative” or the “Shareholders’ Representative Representative”) to act as their true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and sxxxx, in any and all capacities, to execute any and all agreements and documents required or contemplated by this Agreement, including any amendments or waivers hereto, on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Xicom Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take deal with all claims under this Agreement, including any claims for indemnification, and settlements in respect thereto and to notify, negotiate and resolve any and all issues concerning the Final Closing Balance Sheet with Radyne. If, for any reason, Mx. Xxxx is incapacitated or unable to act, Rxxxxx X. Xxxxxx is hereby appointed as his successor to act as the Representative. Radyne shall be entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions necessary taken by the incumbent Representative until such time as Radyne receives actual notice of such Representative’s death or appropriate in incapacity. Radyne shall be entitled to rely upon the judgment response of the Shareholders’ Representative for in all matters pertaining to the accomplishment subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, any or obtained from, the Xicom Shareholders. Notice to or service upon the Representative shall be deemed to constitute good and sufficient notice or service upon all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to Xicom Shareholders for all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativematters, including in electronic formwithout limitation, all notices of or demands for legal processes.
(b) The following represents an agreement solely among the Xicom Shareholders and the Shareholders’ Representative shall not be liable for any act done Representative, and none of Radyne, Merger Sub or omitted hereunder as Xicom is a party hereto: Neither the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf or the Escrow Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it, and any action taken by the . The Shareholders’ Representative based on such reliance shall be deemed conclusively not have any duty to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, ascertain or any provision to inquire as to the contrary set forth performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power not exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Xicom Shareholder shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ Representative herein from and in the Option Agreement shall not authorize against such Xicom Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders’ Representative under this Agreement or the Option Escrow Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner , other than as permitted pursuant to this Agreement and such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Option AgreementShareholders’ Representative’s gross negligence, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement bad faith or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieswillful misconduct.
Appears in 1 contract
Shareholders’ Representative. Xxxx Xxxxx, (asuch Person ---------------------------- and any successor or successors being the "Shareholders' Representative") The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the representative of the Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the settlement thereof) made by Parent or the Shareholders for indemnification pursuant to this Article IX of the Agreement and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of the Escrow Agreement. The Shareholders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.04. The Shareholders' Representative shall promptly, and in any event within five business days, provide written notice to the Shareholders of any action taken on their behalf by the Shareholders' Representative pursuant to the authority (i) delegated to perform the obligations Shareholders' Representative under this Section 9.04. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes to be in the best interest of the Shareholders’ . Neither the Shareholders' Representative set forth in nor any of its directors, officers, agents or employees shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement and or the Option Escrow Agreement, (ii) to give and receive notices and communicationsexcept in the case of the Shareholders' Representative's gross negligence, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Shareholder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Shareholder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results , other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the amounts payable hereunder Escrow Agreement, (a) the Shareholders' Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to any Selling Party being distributed which such Shareholder is entitled under this Agreement and (b) the Shareholders' Representative shall not in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Shareholder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Shareholder. In all matters relating to this Article IX, the Shareholders' Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders' Representative shall perform all of the obligations of the Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Samples: Merger Agreement (Sonicwall Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Xxxxxxx Xxxxx as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will make a payment up to do or cause US$30,000 (the “Expense Fund”) to be done any action (including by amending, modifying or waiving any the Shareholders’ Representative upon provision of this Agreement any receipts and invoices supporting any expenses, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third-party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto]. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBoard of Directors of the Company, by adopting this Agreement and shall appoint Xxxxxx X. Xxxx (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser “Shareholders’ Representative”) as the Shareholders’ Representative agent and attorney-in-fact for and on behalf of the Selling Parties, with the authority each Previous Equityholder to:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to organize or assume the defense of claims, agree to, negotiate, or enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to and waivers any claim; and
(ii) take all other actions specified in respect of this Agreement and to be taken by the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, Shareholders’ Representative and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment By accepting any consideration under this Agreement, each Previous Equityholder shall be deemed to irrevocably appoint and authorize the Shareholders’ Representative to act as his or her agent hereunder with such powers as are delegated hereunder to the Shareholders’ Representative and to take such other actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall act in the best interest of the Previous Equityholders as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative shall determine. No bond shall be required of the Shareholders’ RepresentativeRepresentative and the Shareholders’ Representative shall receive no compensation for services rendered from any of the Company, the Surviving Corporation, Merger Sub or Parent, it being understood that any expenses of Shareholders’ Representative shall be reimbursed by the Previous Equityholders Pro Rata (first from the Shareholders’ Representative Account as below provided). Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from any applicable Previous Equityholder. Any decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all Previous Equityholders and shall be final, binding and conclusive upon each of the Selling PartiesPrevious Equityholders and Parent may rely upon any written decision, except for notices related to any action for which the Selling Parties’ act, consent is required under the terms or instruction of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative. Parent is hereby relieved from any liability to any Person for any acts done by it in accordance with such written decision, including in electronic form.
(b) act, consent or instruction of the Shareholders’ Representative. The Shareholders’ Representative shall not be held liable for any act acts done by it in good faith. In the event that the Shareholders’ Representative dies, is disabled or omitted hereunder otherwise becomes unable to serve in such capacity pursuant to this Agreement, the Previous Equityholders shall elect a Previous Equityholder to serve as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant by majority vote of the Previous Equityholders. Each Previous Equityholder shall have one (1) vote for each Company Share owned immediately prior to the advice Effective Date.
(i) At the Closing, Parent shall deposit Two Hundred Thousand Dollars ($200,000) of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally the Closing Cash Consideration (and not jointly), according to each Selling Partiesthe “Shareholders’ proRepresentative Account Fund”) into an interest-rata interest bearing account in the shares name of Everest, indemnify the Shareholders’ Representative for the benefit of the Previous Equityholders (the “Shareholders’ Representative Account”). Subject to Section 6.9(b)(ii) the Shareholders’ Representative Account Fund shall remain in the Shareholders’ Representative Account up to the later of the Final Release Date or the date that any dispute (if any) between the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Parent pursuant to this Agreement has been resolved (“Shareholders’ Representative Fund Release Date”). Payment of the Shareholders’ Representative and arising out of or in connection with Account Fund on the acceptance or administration of his duties hereunder. No Shareholders’ Representative Fund Release Date shall be made on a Pro Rata basis to the Previous Equityholders.
(ii) Notwithstanding any other provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreementotherwise, the Shareholders’ Representative shall only have the power or authority is authorized to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on draw upon the Shareholders’ Representative herein and Account to pay expenses as he deems, in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause good faith, to be done any action (including by amendingnecessary or appropriate in connection with the defense of Company Indemnity Claims, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in enforcement on behalf of the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to Previous Equityholders of their rights under this Agreement and the Option Agreement, (ii) alters and such other costs and expenses incurred in connection with the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase consummation of any Selling Party’s indemnity or other obligations or liabilities under transaction contemplated by this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAgreement.
Appears in 1 contract
Samples: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Shareholders’ Representative. (a) The Selling PartiesShareholders hereby irrevocably make, constitute and appoint Xxxxxx X. Xxxxx (in his capacity under this Section 4.6, the “Shareholders’ Representative”) as their true and lawful attorney-in-fact with full power of substitution to do on behalf of Shareholders any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by adopting this Agreement and the other Transaction Documents, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the other Transaction Documents; (iii) administrating this Agreement and the other Transaction Documents, including the resolution of any disputes or claims; (iv) resolving, settling or compromising claims for indemnification asserted against Shareholders pursuant to Article 7; (v) agreeing to waivers of conditions and obligations under this Agreement and the other Transaction Documents; and (vi) asserting claims for indemnification under Article 7 and resolving, settling or compromising any such claim.
(b) In the event that Shareholders’ Representative, with the advice of counsel, is of the opinion that he requires further authorization or advice from Shareholders on any matters concerning this Agreement, Shareholders’ Representative is entitled to seek such further authorization from Shareholders prior to acting on their behalf. In such event and on any other matter requiring or permitting Shareholders to vote in this Section 4.6, each Shareholder will have a number of votes equal to the Shares owned by that Shareholder immediately prior to Closing and the authorization of a majority of such Shares will be binding on all Shareholders and will constitute authorization by Shareholders.
(c) Buyer will be fully protected in dealing with Shareholders’ Representative with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby, hereby irrevocably appoint by this Agreement and constitute K Laser may rely upon the authority of Shareholders’ Representative to act as the agent of Shareholders for all purposes under this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby. Any payment by Buyer to Shareholders’ Representative under this Agreement or any other Transaction Document will be considered a payment by Buyer to the Shareholders. The appointment of Shareholders’ Representative is coupled with an interest and will be irrevocable by any Shareholder in any manner or for any reason. This power of attorney will not be affected by the disability or incapacity of the principal pursuant to any applicable Legal Requirement.
(d) Any Shareholders’ Representative may resign from his capacity as a Shareholders’ Representative at any time by written notice delivered to the other Shareholders and to Buyer. If at any time there is no person acting as a Shareholders’ Representative for and on behalf of the Selling Partiesany reason, with the authority (i) to perform the obligations of the Shareholder will promptly designate a new Shareholders’ Representative set forth and promptly notify Buyer in writing of such determination. Following the time that Buyer is notified that there is no Shareholders’ Representative and until such time as a new Shareholders’ Representative is designated as provided herein and Buyer is so notified in writing, Shareholders will collectively act as Shareholders’ Representative, with decisions made in the manner specified in Section 4.6(b).
(e) Xx. Xxxxx, as the initial sole Shareholders’ Representative, acknowledges that he has carefully read and understands this Agreement and the Option Agreement, (ii) hereby accepts such appointment and designation, and represents that he will act in his capacity as Shareholders’ Representative in strict compliance with and conformance to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect the provisions of this Agreement and the Option Agreement, other Transaction Documents.
(ivf) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative will not be liable to Shareholder for any error of judgment, or any act done or step taken or omitted by him in good faith or for any mistake in fact or Legal Requirement, or for anything that he may do or refrain from doing in connection with this Agreement or the accomplishment ofother Transaction Documents, any except for his own bad faith or all of the foregoingwillful misconduct. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative may seek the advice of legal counsel in the event of any dispute or question as to Parent shall constitute notice to or from each the construction of any of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms provisions of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done other Transaction Documents or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend hereunder or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itthereunder, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary except as otherwise set forth in this Agreement or the Option Agreementother Transaction Documents, as a Shareholder, he will incur no liability to Shareholders and will be fully protected with respect to any action taken, omitted or suffered by him in good faith in accordance with the opinion of such counsel.
(g) Any expenses incurred by Shareholders’ Representative shall only have in connection with the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way performance of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities his duties under this Agreement (includingincluding any fees and expenses of legal counsel retained by Shareholders’ Representative) will not be the personal obligations of Shareholders’ Representative but will be payable and will be promptly paid or reimbursed by Shareholders, for pro rata in accordance with their respective ownership in the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesSellers.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Dupreau as the Shareholders’ Representative ' Representative, to serve as the Shareholders' agent, proxy and attorney-in-fact for and on behalf the limited purposes set forth in this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, to agree toto the amount of the actual Closing Date Debt, negotiateClosing Date Current Assets and Closing Date Current Liabilities pursuant to Section 1.2(a), enter into and provide amendments and supplements to and waivers in respect agree to resolution of this Agreement and the Option Agreementall Claims hereunder, (iv) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection withwith the performance by the Shareholders' Representative of this Agreement, and (v) to take do each and every act and exercise any and all actions necessary rights which such Shareholder or appropriate Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the judgment Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ ' Representative for and shall survive the accomplishment ofdeath, bankruptcy or other incapacity of any or all Shareholder.
(c) Each of the foregoing. K Laser Shareholders hereby accepts its appointment as agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be effective if approved in writing by the Shareholders’ Representative. Such agency may be changed by ' Representative and the holders of a majority in interest of the shares Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of Everest any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Selling Parties Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) Dupreau shall serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from time such position or is otherwise unable or unwilling to time upon not less than ten (10) days’ serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence WCI of such good faith change and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.such
Appears in 1 contract
Samples: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. (a) The Selling PartiesBy approving the Merger or by delivering a duly executed Letter of Transmittal to Buyer in exchange for the Merger Consideration to be paid in accordance with Section 2.7(a) or by delivering a duly executed Option Cancellation Agreement to Buyer in exchange for the Option Consideration to be paid in accordance with Section 2.8(a), by adopting this Agreement as applicable, each Seller irrevocably approves the constitution and the transactions contemplated herebyappointment of, and hereby irrevocably appoint constitutes and constitute K Laser appoints Fortis Advisors LLC as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Sellers and each of them (the “Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in connection with, this Agreement, including for purposes of taking any action or omitting to take any action on behalf of the Sellers hereunder to:
(i) act for the Sellers with regard to all matters pertaining to indemnification under this Agreement, including the power to defend, compromise, or settle any claims and to otherwise prosecute or pursue any litigation claims;
(ii) execute and deliver all amendments, waivers, Transaction Documents, certificates and documents that the Shareholders’ Representative for and deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) do or refrain from doing any further act or deed on behalf of the Selling PartiesSellers that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Shareholders’ Representative Engagement Agreement as fully and completely as the Sellers could do if personally present;
(iv) give or receive notices to be given or received by the Sellers under this Agreement; and
(v) receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, with the authority (i) Shareholders’ Representative shall have no obligation to perform act on behalf of the Sellers, except as expressly provided herein and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative set forth in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. All actions, notices, communications and determinations by or on behalf of the Sellers in connection with this Agreement shall be given or made by the Shareholders’ Representative and all such actions, notices, communications and determinations by the Option Agreement, (ii) Shareholders’ Representative shall conclusively be deemed to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertshave been authorized by, and incur shall be binding upon, any other reasonable expenses, of and all Sellers and such Seller’s successors as if expressly confirmed and ratified in connection withwriting by such Seller, and no Seller shall have the right to take all actions necessary object, dissent, protest or appropriate in otherwise contest the judgment same.
(b) Such appointment of the Shareholders’ Representative for the accomplishment ofmay be changed, any or all of the foregoing. K Laser hereby accepts its appointment as and the Shareholders’ Representative. Such agency Representative may be changed replaced, by the holders number of Sellers who represented the majority of the right to vote immediately prior to the Merger. Notwithstanding the foregoing, the Shareholders’ Representative may resign at any time by providing written notice of intent to resign to Sellers, which resignation shall be effective upon the earlier of (i) 30 days following delivery of such written notice or (ii) the appointment of a successor by the number of Sellers who represented the majority in interest of the shares of Everest right to vote immediately prior to the Merger. The immunities and rights to indemnification shall survive the resignation or removal of the Selling Parties from time to time upon not less than ten (10) daysShareholders’ prior written notice to all Representative or any member of the Selling Parties Advisory Group and to Parent and Purchaser. the Closing or any termination of this Agreement a. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from .
(c) Certain Sellers have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to Parent shall constitute notice provide direction to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including Representative in electronic form.
(b) The connection with its services under this Agreement and the Shareholders’ Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in its capacity as such (collectively, the “Shareholders’ Representative Group”) shall not be liable for any act done or omitted hereunder or under the Shareholders’ Representative Engagement Agreement as the Shareholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Shareholders’ Representative. The Shareholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Shareholders’ Representative may engage attorneys, accountants and other professionals and experts. The Shareholders’ Representative may in good faith rely conclusively upon information, reports, statements and without negligence opinions prepared or presented by such professionals, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. Sellers shall indemnify and defend the Shareholders’ Representative Group and hold it the Shareholders’ Representative Group harmless against any lossLoss, liability fee, judgment, claim, damage, liability, cost, expense (including costs incurred in connection with seeking recovery from insurers), fine or expense amounts paid in settlement incurred without gross negligence or bad faith on the part of the Shareholders’ Representative (so long as the Shareholders’ Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of his the Shareholders’ Representative’s duties hereunder. No provision of this Agreement shall require hereunder or under the Shareholders’ Representative Engagement Agreement including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Shareholders’ Representative and fees incurred in connection with seeking recovery from insurers (collectively, the “Shareholders’ Representative Expenses”). Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second, directly from Sellers , and third, from any Milestone Payments at the time such amounts become payable to the Sellers. The Sellers acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement and the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Shareholders’ Representative shall not be required to take any action unless the Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred by the Shareholders’ Representative in performing such actions.
(d) Buyer shall be entitled to rely on the authority of the Shareholders’ Representative (as evidenced by an instrument in writing signed by the Shareholders’ Representative) as the agent, representative and attorney-in-fact of the Sellers for all purposes under this Agreement on behalf and shall have no liability for any such reliance. No Seller may revoke the authority of any Selling Parties. The the Shareholders’ Representative may Representative. By approving the Merger or by delivering a duly executed Letter of Transmittal to Buyer in good faith rely conclusively upon exchange for the informationMerger Consideration to be paid in accordance with Section 2.7(a) or the Option Consideration to be paid in accordance with Section 2.8(a), reports, statements each Seller hereby ratifies and opinions prepared or presented by counsel or other professionals retained by itconfirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively in the exercise of the power-of-attorney granted to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority pursuant to act with respect this Section 2.10. The powers, immunities and rights to matters pertaining indemnification granted to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein Group hereunder are coupled with an interest and in shall be irrevocable and shall survive the Option Agreement shall not authorize death, incapacity, bankruptcy, liquidation or empower the incompetence of such Seller.
(e) The Shareholders’ Representative to do or cause to shall be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that entitled to: (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementrely upon Schedule I, (ii) alters the consideration payable rely upon any signature believed by it to any Selling Party pursuant to this Agreement or the Option Agreementbe genuine, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval reasonably assume that a signatory has proper authorization to sign on behalf of the Selling Partiesapplicable Seller or other party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AzurRx BioPharma, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the execution of this Agreement by the Sellers, and the transactions contemplated herebywithout further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby irrevocably appoint accepts such appointment) as agent and constitute K Laser as the attorney-in-fact (“Shareholders’ Representative Representative”) for and on behalf of the Selling PartiesSellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the authority (i) name, place and stead of each Seller with respect to perform Section 2.4 and the obligations of Escrow Agreement and the taking by the Shareholders’ Representative set forth in this Agreement of any and all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of be taken by the Shareholders’ Representative for under Section 2.4 and the accomplishment of, Escrow Agreement (it being understood that the Sellers shall have no right to pursue any or all claim on behalf of any Company Indemnified Party in respect of the foregoingrights granted to Company Indemnified Parties under Section 7.1). K Laser hereby accepts its appointment as The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ RepresentativeRepresentative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) days’ prior written notice to all including in the event of the Selling Parties death, disability or other incapacity of a Shareholders’ Representative that is an individual), and to Parent and Purchaserany such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. Notices At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or communications obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to or the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to Parent shall constitute notice to or from each expend any of the Selling Partiesamounts held in the Shareholders’ Representative Expense Fund (though, except for notices related the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any action for which costs or expenses or expend any amount in excess of amounts held in the Selling PartiesShareholders’ consent is required under Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement, any amount that the Shareholders’ RepresentativeRepresentative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, including financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in electronic formconnection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall require be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesRepresentative. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall not be liable for, and shall be indemnified by the Sellers for, any action liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively pursuant to have been taken in good faiththe terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) Notwithstanding From and after the foregoing provisions in Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have treat confidentially any nonpublic information about the power or authority to act Company (except in connection with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not performance by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein of its duties or the exercise of its rights under this Agreement).
(d) From and in after the Option Agreement shall not authorize Closing, a decision, act, consent or empower instruction of the Shareholders’ Representative to do shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or cause to be done instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed Person for any acts done by Buyer in accordance with any manner other than as permitted pursuant to this Agreement and the Option Agreementsuch decision, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesAt the Closing, by adopting this Agreement Xxxx-Xxxx Xxxxxxxx shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative Representative. For purposes of this Agreement, the term “Shareholders’ Representative” shall mean the agent for and on behalf of the Selling Parties, with the authority Shareholders and Advisor to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Buyer (on behalf of itself of any other Indemnified Person) relating to this Agreement, the Escrow Agreement, the Stock Purchase or any other transactions contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by such Shareholders or the Advisor individually); (ii) authorize deliveries to Buyer of cash from the Escrow Fund in satisfaction of claims for indemnification pursuant to Section 9.2 asserted by the Indemnified Party; (iii) object to such claims pursuant to Section 9.5(d); (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with orders of courts with respect to, such claims; (v) consent or agree to and waivers in respect of any amendment to this Agreement and the Option Agreement, (ivvi) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. K Laser hereby accepts its appointment The Person serving as the Shareholders’ Representative. Such agency Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of cash then on deposit in the Selling Parties from time to time Escrow Fund upon not less than ten (10) days’ prior written notice to all of the Selling Parties Escrow Agent and to Parent and PurchaserBuyer. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except receive no compensation for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formhis services.
(b) The Shareholders’ Representative shall not be liable to any Shareholder or the Advisor for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith) and absence of negligencewithout gross negligence or willful misconduct. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless from and against any loss, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholders’ Representative. No provision of this Agreement shall require If not paid directly to the Shareholders’ Representative to expend by the Shareholders, such losses, liabilities or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative expenses may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be recovered by the Shareholders’ Representative based on from cash, shares or other property in the Escrow Fund otherwise distributable to the Shareholders and the Advisor (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) following the 18 month anniversary of the Closing Date pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such reliance shall recovery will be deemed conclusively made from the Shareholders and the Advisor according to have been taken in good faiththeir respective pro rata shares of the Escrow Fund.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIAny notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or any provision to the contrary set forth in this Agreement or the Option Agreementinstruction of, the Shareholders’ Representative shall only have that is within the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way scope of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in Representative’s authority under Section 11.2(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement Shareholders and the Option AgreementAdvisor and shall be final, (ii) alters binding and conclusive upon each such Shareholder and the consideration payable Advisor. The Escrow Agent and each Indemnified Party shall be entitled to rely upon any Selling Party pursuant such notice, communication, decision, action, failure to this Agreement act within a designated period of time, agreement, consent, settlement, resolution or the Option Agreementinstruction as being a notice or communication to or by, or (iii) adds a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (includinginstruction of, for each and every such Shareholder and the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAdvisor.
Appears in 1 contract
Shareholders’ Representative. (aA) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, Shareholders hereby irrevocably appoint constitutes and constitute K Laser appoints Xxxxxx X. Xxxxxx, III, and Xx. Xxxxxx hereby accepts such appointment, as their agent and attorney-in-fact with full power of substitution and revocation to do any and all things and execute any and all documents on his or her behalf which may be necessary, convenient or appropriate with respect to: (i) amendments to this Agreement, provided that no amendment shall materially adversely affect the rights of any one Shareholder relative to any other Shareholders’ Representative for ; (ii) the execution of documents and on behalf certificates pursuant to this Agreement; (iii) determination of the Selling Parties, with the authority Working Capital Adjustment; (iv) receipt and forwarding of notices and communications pursuant to this Agreement; and (v) negotiation and compromise of any indemnity claims made by Buyer hereunder. The Shareholders Representative is authorized (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions which the Shareholders Representative considers necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or desirable in connection with the acceptance defense, pursuit or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision determinations relating to the contrary set forth in this Agreement or the Option Agreementmatters described above, the Shareholders’ Representative shall only have the power or authority including to act with respect to matters pertaining to the Selling Parties as a group xxx, defend, negotiate, settle and not matters pertaining to an individual Selling Party (compromise any such claims for example but not indemnification made by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party Buyer pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), agreements or transactions contemplated hereby; (ii) to engage and employ agents and representatives (including accoutants, legal counsel and other professionals) and to incur such other expenses as he shall deem necessary or prudent in connection with the administration of the foregoing; and (iii) to take all other actions and exercise all other rights which the Shareholders Representative (in his sole discretion) considers necessary or appropriate in connection with the foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Shareholders Representative shall have no duties or responsibilities except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Shareholder shall otherwise exist against the Shareholders Representative.
(B) The Buyer and DBI shall be fully protected in dealing with Xx. Xxxxxx under this Section 8.1(c)Agreement and may rely upon the authority of Xx. Xxxxxx to act as the Shareholders Representative. The Shareholders Representative is authorized to act on the Shareholders' behalf notwithstanding any dispute or disagreement among the Shareholders. The appointment of Xx. Xxxxxx is coupled with an interest and is irrevocable by any Shareholder in any manner or for any reason, without first obtaining unless written revocation is personally delivered to Xx. Xxxxxx and the Buyer on or prior written approval to the time that action on behalf of the Selling PartiesShareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to actions taken or proposed to be taken after receipt of such notice. This power of attorney shall not be affected by the death, disability or incapacity of any Shareholder.
(C) If at any time there is no person acting as Shareholders Representative for any reason, the Shareholders holding a majority interest in the Retained Stock shall choose a person to act as Shareholders Representative under this Agreement.
(D) Neither the Shareholders Representative nor any agent employed by him shall be liable to any Shareholder relating to the performance of his duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall be indemnified and held harmless by the Shareholders against all costs, expenses and damages paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholders Representative is made a party by reason of the fact that he was acting as the Shareholders Representative pursuant to this Agreement; provided, however, that the Shareholders Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall be protected in acting upon any notice, statement or certificate believed by him to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, BB hereby irrevocably appoint constitutes and constitute K Laser appoints Xxxxxxx Xxxxxxxxx, and in his absence or upon his resignation, Xxxxxx Xxxxxx, as the Shareholders’ true and lawful agent and attorney-in-fact (the “Shareholder Representative”) for BB and its shareholder with full powers of substitution to act in the name, place and stead of BB with respect to the performance on behalf of BB under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for BB with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of BB;
(ii) act for BB with respect to the Escrow Amount;
(iii) amend or waive any provision hereof (including any condition to Closing) in any manner that does not differentiate among any shareholder of BB;
(iv) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative;
(v) act for BB with respect to all Acquisition Transaction Consideration matters and all Acquisition Transaction Consideration adjustment matters referred to herein following the Closing;
(vi) incur any expenses, liquidate and withhold assets received on behalf of the Selling Partiesshareholder of BB prior to their distribution to such shareholder to the extent of any amount that the Shareholder Representative deems necessary for payment of or as a reserve against expenses, with and pay such expenses or deposit the authority same in an interest-bearing bank account established for such purpose;
(ivii) to perform receive all notices, communications and deliveries hereunder on behalf of BB and its shareholder; and
(viii) do or refrain from doing any further act or deed on behalf of BB and its shareholders that the obligations Shareholder Representative deems necessary or appropriate, in the sole discretion of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Shareholder Representative, including in electronic formrelating to the subject matter hereof as fully and completely as BB could do if personally present and acting and as though any reference to BB and such shareholder herein was a reference to the Shareholder Representative.
(b) The Shareholders’ appointment of the Shareholder Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith deemed coupled with an interest and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itirrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action taken by of the Shareholders’ Shareholder Representative based on such reliance shall be deemed conclusively as the act of each shareholder of BB in all matters referred to have been taken in good faithherein.
(c) Notwithstanding In the foregoing provisions event the Shareholder Representative resigns or ceases to function in this ARTICLE VIIIsuch capacity for any reason whatsoever, or any provision to then the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ successor Shareholder Representative shall only have be the power or authority to act with respect to matters pertaining to the Selling Parties as person that is appointed by a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature majority of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Shareholder Indemnifying Parties.
Appears in 1 contract
Samples: Asset Acquisition and Assumption Agreement (Sun American Bancorp)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Meeshanthini (Meesha) Dogan as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Parent for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Parent of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Parent in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Parent, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall not include costs (other than third party expenses) incurred by the Shareholders’ Representative based on in the ordinary course of business of the Shareholders’ Representative under any engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, that in the event that any such reliance shall be deemed conclusively Representative Loss is finally adjudicated to have been taken in good faith.
(c) Notwithstanding directly caused by the foregoing provisions in this ARTICLE VIII, gross negligence or any provision to willful misconduct of the contrary set forth in this Agreement or the Option AgreementShareholders’ Representative, the Shareholders’ Representative shall only have will reimburse the power or authority to act with respect to matters pertaining Company Securityholders the amount of such indemnified Representative Loss to the Selling Parties as a group and not matters pertaining extent attributable to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her such gross negligence or its individual breach of a covenant in this Agreement), and the powers conferred on willful misconduct. In no event will the Shareholders’ Representative herein and be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the Option contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement shall are not authorize or empower intended to be applicable to the indemnities provided to the Shareholders’ Representative to do under this section. The foregoing indemnities will survive the Closing, the resignation or cause to be done any action (including by amending, modifying removal of the Shareholders’ Representative or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. In order to administer efficiently the determination of certain matters under this Agreement, each Vendor hereby irrevocably authorizing Shareholders’ Representative to act as each such Vendor's agent and representative with respect to all matters relating to this Agreement. Without limiting the generality of the foregoing, Shareholders’ Representative shall have full power and authority to make all decisions and take all actions relating to Vendors' respective rights, obligations and remedies under this Agreement including to receive and make payments, to receive and send notices (a) The Selling Partiesincluding notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification on behalf of Vendors and to defend against indemnification claims of Purchaser. All decisions and actions taken by adopting Shareholders’ Representative shall be binding upon all Vendors, and no Vendor shall have the right to object, dissent, and protest or otherwise contest the same. Purchaser shall be entitled to deal only with Shareholders’ Representative in respect of all matters arising under this Agreement and including to receive and make payments, to receive and send notices, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against Vendors or any one of them and to defend against indemnification claims of Vendors. All references in this Agreement to decisions and actions to be taken by Vendors or any one of them shall be deemed taken by Vendors or the transactions contemplated herebyrelevant one of them if such decisions or actions are taken by Shareholders’ Representative. All references in this Agreement to decisions and actions to be taken by Purchaser and directed to Vendors or any one of them shall be deemed directed to Vendors or the relevant one of them if such decisions or actions are directed by Purchaser to Shareholders’ Representative. In no event shall Purchaser be held responsible or liable for the application or allocation of any monies paid to Shareholders’ Representative by Purchaser, hereby irrevocably appoint and constitute K Laser as Purchaser shall be entitled to rely upon any notice provided to Purchaser by Shareholders’ Representative or action taken by Shareholders’ Representative acting within the scope of his authority. Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification or a principal defense shall be ineffective by reason only of it having been made or given to or by a Vendor directly if each of Purchaser and such Vendor consent by virtue of not objecting to such dealings without the intermediary of Shareholders’ Representative. Each of the Vendors shall pay the Shareholders’ Representative reasonable compensation as agreed to from time to time for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment acting as the Shareholders’ Representative. Such agency may be changed by For further clarification, it is confirmed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Shareholders Representative shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except seeking no compensation for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder acting as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant from the Closing Date to March 1, 2016. Each of the advice of counsel Vendors shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative from all expenses and hold it harmless against any loss, liability or expense costs incurred without gross negligence or bad faith on in his capacity acting as the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholders Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each of the Shareholders and the transactions contemplated hereby, Principal Shareholders hereby irrevocably appoint and constitute K Laser as appoints the Shareholders’ Representative for as his, her or its representative and true and lawful attorney-in-fact with full power, in his name and on behalf of the Selling Partieshis behalf, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) act according to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from in the Shareholders’ Representative’s absolute discretion, including and in electronic form.
(b) general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall inform each Shareholder and Principal Shareholder, as applicable, of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by him in connection with the Escrow. The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as agent for the Shareholders and the Principal Shareholders’ Representative , as applicable, while acting in good faith and without negligence in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders and the Principal Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. .
(b) The Shareholders’ Representative may in good faith , the Principal Shareholders, Chilco, KUBUK and the Escrow Agent shall be entitled to rely conclusively upon the information, reports, statements and opinions prepared any communication or presented by counsel writing given or other professionals retained by it, and any action taken executed by the Shareholders’ Representative based on such reliance shall Representative. All communications or writings to be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision sent to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Shareholders and the powers conferred on the Principal Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted applicable, pursuant to this Agreement may be addressed to the Shareholders’ Representative, and any communication or writing so sent shall be deemed notice to all of the Shareholders and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPrincipal Shareholders hereunder.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Persons designated in the preamble hereto as the Shareholders’ Representative for and on behalf hereunder shall have each of the Selling Partiesrights, with the authority (i) to perform the duties and obligations of the Shareholders’ Representative set forth in this Section 11.1, and, notwithstanding anything to the contrary set forth in this Agreement or any Transaction Document, Parent and the Option AgreementSurviving Corporation (i) shall be entitled to rely on any communication from either of the Persons designated as the Shareholders’ Representative as the action of the Shareholders’ Representative hereunder, and (ii) shall be deemed to have delivered any required notice hereunder or under any Transaction Document to the Shareholders’ Representative upon delivery of notice in accordance with Section 11.2 of this Agreement or any corresponding section of any Transaction Document to either of the Persons designated as the Shareholders’ Representative. The Shareholders’ Representative may be removed at any time upon the written election of the Shareholders representing at least 75% of the aggregate voting power of the Shares immediately prior to the Closing; provided that such Shareholders concurrently elect a replacement Shareholders’ Representative and Parent is given prompt written notice of such replacement by the Shareholders’ Representative. Each Shareholder hereby constitutes and appoints the Shareholders’ Representative, including any replacement of any such Shareholders’ Representative, as attorney-in-fact for such Shareholder with full power and authority to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and receive notices and communications, (iii) to dispute any claim of any Parent Indemnified Party with respect to indemnification hereunder, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur to comply with orders of courts with respect to any other reasonable expenses, in connection with, dispute or loss and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as ; provided, however, that the Shareholders’ RepresentativeRepresentative shall not have the power or authority to execute an amendment, waiver, document or other instrument that, notwithstanding any other provision to the contrary, increases in any material respect the obligations or liabilities of any Shareholder without the prior written consent of that Shareholder. Such agency may The Shareholders shall, pro rata, be changed responsible for the payment of all fees and expenses reasonably incurred by the holders of a majority Shareholders’ Representative in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserperforming its/his duties under this Agreement. No bond shall be required All decisions of the Shareholders’ Representative. Notices or communications to or from Representative may be relied upon by the Shareholders’ Representative to Parent Parent, the Company and any third person, and shall constitute notice to or from be binding and conclusive upon each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(b) The Shareholders’ Representative shall not be liable liable, responsible or accountable in damages or otherwise to the Shareholders for any loss or damage incurred by reason of any act done or omitted hereunder as failure to act by such Shareholders’ Representative, and each Shareholder shall severally and not jointly, pro rata, indemnify and hold harmless the Shareholders’ Representative while acting in good faith and without negligence and against any act done loss or omitted pursuant damage except to the advice extent that such loss or damage shall have been the result of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without individual gross negligence or bad faith on the part willful misconduct of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. Representative.
(c) The Shareholders’ Representative may shall be entitled to withdraw an amount in good faith rely conclusively upon cash of up to Five Hundred Thousand Dollars ($500,000) in the informationaggregate from the Escrow Funds for the payment of expenses, reportscharges and liabilities, statements and opinions prepared or presented by counsel or other professionals retained by itincluding reasonable attorneys’ fees, and any action taken incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, performance or any provision to the contrary set forth in this Agreement or the Option Agreement, discharge of the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Representative’s rights, duties and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to obligations under this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature each of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesTransaction Documents.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEach Shareholder, by adopting signing this Agreement, designates Xxxx Xxxxxxxxxxx (or, in the event that Xxxx Xxxxxxxxxxx is unable or unwilling to serve, the Shareholders shall collectively appoint, by a majority vote, a Shareholder reasonably acceptable to the Company) to be the "SHAREHOLDERS' REPRESENTATIVE" for purposes of this Agreement. In the event that Xxxx Xxxxxxxxxxx, as Shareholders' Representative, expects to be absent for any period of time (for example, if he is travelling for an extended period), he shall have the right to appoint a temporary Shareholders' Representative to act in his stead during such time period and each Shareholder agrees to such temporary assignment. The term "Shareholders' Representative" includes any such temporary appointee. The Shareholders shall be bound by any and all actions taken by the Shareholders' Representative on their behalf.
(b) Each of ADAC and Sub shall be entitled to rely upon any communication or writings given or executed by the Shareholders' Representative. All communications or writings to be sent to Shareholders pursuant to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as may be addressed to the Shareholders’ ' Representative for and any communication or writing so addressed and sent shall be deemed notice to -4- all of the Shareholders hereunder. The Shareholders hereby consent and agree that the Shareholders' Representative is authorized to accept deliveries, including any notice, on behalf of the Selling PartiesShareholders pursuant hereto.
(c) The Shareholders' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Shareholder, with full power in his or her name and on his or her behalf to act according to the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect terms of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate Transactional Agreements in the judgment absolute discretion of the Shareholders’ Representative for the accomplishment of, any or ' Representative; and in general to do all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties things and to Parent perform all acts including, without limitation, executing and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or deemed advisable in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementother Transactional Agreements. This power of attorney and all authority hereby conferred is granted subject to the interest of the other Shareholders hereunder and in consideration of the mutual covenants and agreements made herein, (ii) alters the consideration payable to and shall be irrevocable and shall not be terminated by any Selling Party pursuant to this Agreement act of any Shareholder, by operation of law, whether by such Shareholder's death or the Option Agreementotherwise, or (iii) adds to or results in an increase of by any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevent.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Shareholders’ Representative. a. In order to efficiently administer this transaction and the defense and/or settlement of any indemnification claims for which the Shareholders may be required to indemnify an indemnified party hereunder, the Shareholders hereby designate Jeffrey R. Esposito as the Shxxxxxxxxxx' Xxxxxxxntative.
b. The Shareholders hereby authorize the Shareholders' Representative (ai) The Selling Partiesto make all decisions relating to the determination of the consideration for the Shares, by adopting this Agreement and (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as or the Shareholders’ Representative defense and/or settlement of any claims for and on behalf of which the Selling Parties, with the authority (i) Shareholders may be required to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementindemnify any indemnified party hereunder, (iiiii) to give and receive all notices and communications, (iii) required to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of be given under this Agreement and the Option Agreement, and (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and all additional action as is contemplated to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement.
c. In the event that the Shareholders’ ' Representative becomes unable to perform his or her responsibilities hereunder, whether due to death or disability, or resigns from such position, Shareholders holding, prior to the Closing, a majority of the Shares as set forth on Schedule A attached hereto shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for the purposes of this Agreement authorized to act for the Shareholders in accordance with Subsection 1.01(b) hereof.
d. All decisions and actions by the Shareholders' Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for including, without limitation, any act done or omitted hereunder as agreement between the Shareholders’ ' Representative while acting in good faith and without negligence and the Agent or any act done or omitted pursuant Transferee relating to the advice consideration or the defense or settlement of counsel any claims for which the Shareholders may be required to indemnify any party hereunder, shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part binding upon all of the Shareholders’ Representative , and arising out of no Shareholder shall have the right to object, dissent, protest or in connection with otherwise contest the acceptance or administration of his duties hereunder. No provision same.
e. By their execution of this Agreement Agreement, the Shareholders agree that the Agent and Transferees shall require be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the consideration or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powers, rights, duties claims for indemnification hereunder or privileges under this Agreement on behalf of any Selling Parties. The other actions required to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Agent or Transferees for any action taken by either or both of them in reliance upon the instructions or decisions of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the f. Shareholders’ ' Representative shall only have the power charge no fees or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (request reimbursement of expenses for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant his service in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiescapacity.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kma Global Soulutions International Inc)
Shareholders’ Representative. (a) By approval of this Agreement ---------------------------- and the transactions contemplated hereby by the requisite percentage of the Shareholders under the California Code, the Shareholders designate Tira Capital Management, Inc., who hereby accepts such appointment (or, in the event that Tira Capital Management, Inc. is unable to serve or resigns, Xxxxx Xxx) to be such Shareholder's representative for purposes of this Agreement (the "Shareholders' Representative"). The Shareholders shall be bound by any and all actions taken by the Shareholders' Representative on their behalf.
(a) The Selling Parties, Parent and Newco shall be entitled to rely upon any communication or writing given or executed by adopting the Shareholders' Representative. All communications or writings to be sent to Shareholders pursuant to this Agreement may be addressed to the Shareholders' Representative and any communication or writing so sent shall be deemed notice to all of the Shareholders hereunder. By approval of this Agreement and the transactions contemplated herebyhereby by the requisite percentage of the Shareholders under the California Code, hereby irrevocably appoint the Shareholders consent and constitute K Laser as agree that the Shareholders’ ' Representative for and is authorized to accept deliveries, including any notice, on behalf of the Selling Parties, with the authority Shareholders pursuant hereto.
(ib) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect By approval of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in transactions contemplated hereby by the judgment requisite percentage of the Shareholders’ Representative for Shareholders under the accomplishment ofCalifornia Code, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond ' Representative shall be required appointed and constituted the true and lawful attorney-in-fact of the Shareholders’ Representative. Notices each Shareholder, with full power in his or communications her name and on his or her behalf to or from the Shareholders’ Representative act according to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from in the absolute discretion of the Shareholders’ ' Representative, including and in electronic formgeneral to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Sections 2 and 10 of this Agreement. This power of attorney and all authority hereby and thereby conferred shall be granted subject to and coupled with the interest of the Shareholders and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of law, whether by such Shareholder's death or any other event.
(bc) Notwithstanding the foregoing, the Shareholders' Representative shall inform each Shareholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by such Shareholders' Representative, and shall act as directed by the Shareholders holding a majority interest in the Escrow Property.
(d) The Shareholders’ ' Representative shall not be liable suffer any liability or loss for any act done performed or omitted to be performed by him in his capacity as Shareholders' Representative under this Agreement in the absence of gross negligence or willful misconduct. The Shareholders' Representative may consult with legal counsel in connection with his duties hereunder as the Shareholders’ Representative while acting and shall be fully protected by any act taken, suffered, permitted, or omitted in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel legal counsel.
(e) The Shareholders' Representative shall be conclusive evidence entitled to employ such legal counsel and other experts as he may deem necessary to advise him properly with respect to his rights and obligations hereunder and to evaluate claims and to pursue challenges to claims or to defend third party claims. The reasonable expenses and fees of such good faith legal counsel and, experts, and absence of negligence. The Selling Parties shall severally (and not jointly)any reasonable, according to each Selling Parties’ prodocumented out-rata interest in the shares of Everest, indemnify of-pocket expenses which the Shareholders’ ' Representative incurs under this Section 2.8 in relation to evaluating, challenging or contesting claims, shall be reimbursed solely by the Shareholders.
(f) The Shareholders shall indemnify, defend and hold it the Shareholders' Representative harmless from and against any and all loss, damage, tax, liability or and expense that may be incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and by him arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties, except as caused by his duties hereunder. No provision gross negligence or willful misconduct, including the legal costs and expenses of this Agreement shall require the Shareholders’ Representative to expend defending himself against any claim or risk its own funds or otherwise incur any financial liability in the exercise or connection with his performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The as Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Verticalnet Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Xxxx Xx is hereby appointed as agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as attorney-in-fact for each of the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform enter into and deliver the obligations Escrow Agreement on behalf of each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give authorize or object to delivery to the Purchaser of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest each of the shares of Everest of the Selling Parties Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Selling Parties and Company Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent and or Purchaser, as applicable. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares exercise of Everestreasonable business judgment. A decision, indemnify the Shareholders’ Representative and hold it harmless against any lossact, liability consent or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and arising out shall be final, binding and conclusive upon each of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By approval and adoption of this Agreement and by the transactions contemplated herebyLiveDeal Shareholders, Xxxxxx Xxxxx (the “Shareholders’ Representative”) is hereby irrevocably appoint and constitute K Laser appointed to act as the Shareholders’ Representative LiveDeal Shareholders true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and xxxxx, in any and all capacities, to execute any and all agreements and documents required or contemplated by this Agreement, including any amendments or waivers hereto, on behalf of the Selling PartiesLiveDeal Shareholders, and to deal with all claims under this Agreement, including any claims for indemnification, and settlements in respect thereto and to notify, negotiate and resolve any and all other issues concerning the authority (i) Agreement with YP. If for any reason, Xxxxxx Xxxxx believes that a conflict of interest exists that prohibits him from properly performing his duties as Shareholders’ Representative, he reserves the right to perform appoint a representative of Torstar Corporation as Shareholders’ Representative. YP shall be entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions taken by the obligations incumbent Shareholders’ Representative until such time as YP receives actual notice of such Shareholders’ Representative’s death or incapacity. YP shall be entitled to rely upon the response of the Shareholders’ Representative set forth in this Agreement and all matters pertaining to the Option Agreementsubject matter hereof, (ii) including, without limitation, any consent or approval provided or contemplated hereunder to give and receive notices and communicationsbe given by or on behalf of, (iii) or obtained from, the LiveDeal Shareholders. Notice to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of service upon the Shareholders’ Representative for the accomplishment of, any shall be deemed to constitute good and sufficient notice or service upon all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to LiveDeal Shareholders for all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativematters, including in electronic formwithout limitation, all notices of or demands for legal processes.
(b) The following represents an agreement solely among the LiveDeal Shareholders and the Shareholders’ Representative shall not be liable for any act done Representative, and none of YP, Merger Sub or omitted hereunder as LiveDeal is a party hereto. Neither the Shareholders’ Representative while acting in good faith and without negligence and nor any act done of LiveDeal’s directors, officers, agents or employees, if any, shall be liable to any LiveDeal Shareholder for any error of judgment, or any action taken, suffered or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges taken under this Agreement on behalf or the Escrow Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented other experts selected by counsel or other professionals retained by it, and any action taken by the him. The Shareholders’ Representative based on such reliance shall be deemed conclusively not have any duty to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, ascertain or any provision to inquire as to the contrary set forth performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power not exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each LiveDeal Shareholder shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ Representative herein from and against such LiveDeal Shareholder’s Pro Rata Portion (as defined in the Option Agreement shall not authorize Section 7.2) of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders’ Representative under this Agreement or the Option Escrow Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner , other than as permitted pursuant to this Agreement and such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Option AgreementShareholders’ Representative’s gross negligence, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement bad faith or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieswillful misconduct.
Appears in 1 contract
Samples: Merger Agreement (Yp Corp)
Shareholders’ Representative. Each of the Shareholders hereby irrevocably makes, constitutes and appoints Timothy C Palmer as his agent and representative and attorney-in-fact (xxx "Xxxxxxxxxers' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to: (a) receive all notices or documents given or to be given to him by Phoenix pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder ; (b) deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration; (c) sign and deliver to Phoenix at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder; (d) deliver to Phoenix at the Closing all certificates and documents to be delivered to Phoenix by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose; (e) engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ ' Representative for may deem appropriate; and (f) take such action on behalf of such Shareholders as the Selling Parties, with the authority Shareholders' Representative may deem appropriate in respect of: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur waiving any other reasonable expenses, in connection with, and to take all actions necessary or appropriate inaccuracies in the judgment representations or warranties of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth Phoenix contained in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted document delivered by it pursuant to this Agreement and the Option Agreement, hereto; (ii) alters waiving the consideration payable fulfillment of any of the conditions precedent to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' obligations hereunder; (iii) adds taking such other action as he is authorized to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities take under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Agreement;
Appears in 1 contract
Samples: Share Exchange Agreement (Phoenix International Industries Inc /Fl/)
Shareholders’ Representative. (a) The Selling Parties, by adopting Company Shareholders hereby designate Xxxxx Xxxxx to serve as the Shareholders’ Representative as provided herein. By signing this Agreement and in the transactions contemplated herebycapacity of Shareholders’ Representative, the Shareholders’ Representative hereby irrevocably appoint and constitute K Laser accepts the appointment as the Shareholders’ Representative for purposes of this Agreement.
(b) Each Company Shareholder, by the execution of this Agreement, hereby irrevocably appoints the Shareholders’ Representative as the representative, proxy and on behalf attorney-in-fact (with full power of substitution) for such Company Shareholder for the Selling Parties, with limited purposes of carrying out the authority (i) to perform the obligations express duties of the Shareholders’ Representative set forth in under this Agreement. Within the scope of that limited purpose, each Company Shareholder grants the Shareholders’ Representative the full and exclusive power and authority to represent and bind such Company Shareholder with respect to all matters related to, arising under or pursuant to the express duties of the Shareholders’ Representative under this Agreement (including the taking by the Shareholders’ Representative of any and all actions and the Option Agreementmaking of any decisions required or permitted to be taken on such Company Shareholder’s behalf), including without limitation: (i) to terminate this Agreement in accordance with the provisions of Article X; (ii) to give and receive notices and communicationsbring, defend and/or resolve any claim made or threatened pursuant to Article IX; (iii) to agree to, negotiate, enter into settle, adjust or compromise any such claims, bring suit or seek arbitration with respect to any such claims, and provide amendments comply with orders of courts and supplements awards of arbitrators with respect to and waivers in respect of this Agreement and the Option Agreement, any such claims; (iv) to retain legal counselact on behalf of such Company Shareholder in any dispute, accountantsclaim, consultants litigation or arbitration that in the judgment of the Shareholders’ Representative may result in a claim pursuant to Article IX hereof; (v) to agree to the defense of any Third Party Claim by the Company Shareholders pursuant to Article IX hereof; and other experts, and incur any other reasonable expenses, in connection with, and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing. A decision, act, consent or instruction of the Shareholders’ Representative as to any of the foregoing matters shall constitute a decision of all of Company Shareholders and shall be final, binding and conclusive on each Company Shareholder. Parent may rely upon such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of every Company Shareholder. The Shareholders’ Representative, in its sole and absolute discretion, may, by written notice to Parent and the applicable Company Shareholders, decline to exercise the power and authority granted herein to act on behalf of and in the name of any Company Shareholder or all of the foregoingCompany Shareholders with respect to any or all matters specified in such written notice, without incurring any liability to any party to this Agreement in connection with or as a result of such declination. K Laser hereby accepts its appointment as EACH COMPANY SHAREHOLDER AGREES THAT SUCH AGENCY AND PROXY ARE COUPLED WITH AN INTEREST, ARE THEREFORE IRREVOCABLE WITHOUT THE CONSENT OF THE SHAREHOLDERS’ REPRESENTATIVE AND SHALL SURVIVE THE DEATH, INCAPACITY, OR BANKRUPTCY OF ANY COMPANY SHAREHOLDERS.
(c) Neither the Shareholders’ Representative. Such agency may Representative nor any agent employed by it shall incur any liability to any Company Shareholders relating to the performance of its duties hereunder for any error of judgment, or any action taken, suffered or omitted to be changed by the holders of a majority in interest taken on behalf of the shares Company Shareholders (or any of Everest them), except in the case of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required actual gross negligence or fraud of the Shareholders’ Representative. Notices The Shareholders’ Representative may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or communications to or from suffered by the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall counsel.
(d) Each Company Shareholder hereby irrevocably agrees, severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the bear such Company Shareholders’ Representative and hold it harmless against Pro Rata Portion of any loss, liability or expense expense, including reasonable attorneys’ fees and expenses, incurred without gross negligence or bad faith fraud on the part of the Shareholders’ Representative and arising out of or Representative, in connection with the acceptance performance of its duties, or administration arising out of, or in connection with, any action or decision taken or made on behalf of his duties hereunder. No provision of this Agreement shall require any Company Shareholder by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in within the exercise or performance scope of any of its powers, rights, the Shareholders’ Representative’s duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itSection 1.10, and any action to be bound by all actions taken by the Shareholders’ Representative based on in its capacity as such reliance within the scope of the Shareholders’ Representative’s duties under this Section 1.10. The Company Shareholders hereby acknowledge and agree that loss, liability or expense, including reasonable attorneys’ fees and expenses, incurred by the Shareholders’ Representative, if any, (i) shall be deemed conclusively reimbursed from the Shareholders’ Representative Expense Amount, and (ii) from and after the time the Shareholders’ Representative Expense Amount has been reduced to have been taken zero, shall be reimbursed by each of the Company Shareholders in good faith.
(c) Notwithstanding accordance with the foregoing provisions in this ARTICLE VIIIrespective Pro Rata Portion attributable to such Company Shareholder’s shares of Company Capital Stock; provided, or any provision to the contrary set forth in this Agreement or the Option Agreementhowever, that the Shareholders’ Representative shall only have be entitled to withhold from any amounts released from the power or authority to act with respect to matters pertaining Escrow Assets to the Selling Parties as a group and Company Shareholders any amounts that are not matters pertaining to an individual Selling Party so reimbursed by Company Shareholders.
(for example but not by way e) Upon the death, disqualification or resignation of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Representative, a successor Shareholders’ Representative to do or cause to shall be done any action (including appointed by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature mutual written agreement of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Shareholders.
Appears in 1 contract
Samples: Stock Purchase Agreement (FusionStorm Global, Inc.)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and appoint Clarx xx the transactions contemplated herebyShareholders' Representative, hereby irrevocably appoint and constitute K Laser to serve as the Shareholders’ Representative ' agent, proxy and attorney-in-fact for and on behalf the limited purposes set forth in this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, to agree toto the amount of the actual Closing Date Debt, negotiateClosing Date Current Assets and Closing Date Current Liabilities pursuant to Section 1.2(a), enter into and provide amendments and supplements to and waivers in respect agree to resolution of this Agreement and the Option Agreementall Claims hereunder, (iv) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection withwith the performance by the Shareholders' Representative of this Agreement, and (v) to take do each and every act and exercise any and all actions necessary rights which such Shareholder or appropriate Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the judgment Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ ' Representative for and shall survive the accomplishment ofdeath, bankruptcy or other incapacity of any or all Shareholder.
(c) Each of the foregoing. K Laser Shareholders hereby accepts its appointment as agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders’ Representative. Such agency may Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be changed effective if approved in writing by persons who were the holders of a majority in interest of the shares of Everest Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) Clarx xxxll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the Selling Parties from time holders of a majority of the Corporation's Stock immediately prior to time upon not less than ten (10) days’ prior the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to all WCI of the Selling Parties such change and such substituted representative shall then be deemed to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms all purposes of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. (a) The Selling PartiesShareholder Representative shall, by adopting this Agreement virtue of the Merger, be appointed attorney-in-fact and the transactions contemplated herebyauthorized and empowered to act, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of any or all of Company Shareholders (with full power of substitution in the Selling Partiespremises), in connection with the authority provisions of Article IX as they relate to Company and Company Shareholders generally, and such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby including, without limitation, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcompromise on their behalf with Parent any claims asserted thereunder, (ii) to give execute and receive notices and communicationsdeliver on behalf of Company Shareholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement, (iii) to agree to, negotiate, enter into administer and provide amendments and supplements resolve any disputes with respect to and waivers in respect the computation of this Agreement any adjustments to the Purchase Price and the Option Agreement, Purchase Notes and (iv) to retain legal counsel, accountants, consultants take such further actions including coordinating and other experts, administering post-closing matters related to the rights and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment obligations of Company Shareholders (including exchanges of the Shareholders’ Representative for Purchase Notes) as are authorized in this Agreement (the accomplishment ofabove named representative, as well as any or all subsequent representative of the foregoing. K Laser hereby accepts its appointment Company Shareholders appointed by Company Shareholders being referred to herein as the “Shareholders’ Representative”). Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for to any act done Company Shareholder, Parent, the Surviving Corporation or their respective Affiliates or any other Person with respect to any action taken or omitted hereunder as to be taken by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the his role as Shareholders’ Representative and hold it harmless against any lossunder or in connection with this Agreement unless such action or omission results from or arises out of fraud, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative. Parent, Merger Sub and the Surviving Corporation shall be entitled to rely on such appointment and treat such Shareholders’ Representative as the duly appointed attorney-in-fact of each Company Shareholder. Each Company Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote and arising out of or without any further action, and each Company Shareholder who receives Merger Consideration in connection with the Merger, by acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur thereof and without any financial liability in the exercise or performance of any of its powersfurther action, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements confirms such appointment and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithauthority.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Each Indemnifying Party by virtue of the approval and adoption of this Agreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, appointed and empowered the Shareholders’ Representative, for the benefit of the Indemnifying Parties, by adopting this Agreement as the exclusive agent and attorney-in-fact to act for and on behalf of each Indemnifying Party, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on an Indemnifying Party) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Shareholders’ Representative, to enforce and protect the rights and interests of the Indemnifying Parties and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement, the Exchange Agent Agreement, and the other agreements, documents and instruments executed in connection herewith and the transactions provided for herein and therein, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement and the other agreements, documents and instruments executed in connection herewith for and on behalf of the Selling Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the authority Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by CHC, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Indemnifying Parties, and receive process on behalf of any or all Indemnifying Parties in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Shareholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Shareholders’ 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; (iii) to perform refrain from enforcing any right of the obligations Indemnifying Parties arising out of or under or in any manner relating to this Agreement and the other agreements, documents and instruments executed in connection herewith; provided, however, that no such failure to act on the part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholders’ Representative set forth or by the Indemnifying Parties unless such waiver is in a writing signed by the waiving Party or by the Shareholders’ Representative; (iv) 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 Shareholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and the Option Agreementother agreements, documents and instruments executed in connection herewith; (iiv) to give engage special counsel, accountants and receive notices other advisors and communicationsincur such other expenses on behalf of the Indemnifying Parties in connection with any matter arising under this Agreement and the other agreements, documents and instruments executed in connection herewith; and (iiivi) to agree tocollect, negotiatehold and disburse any amounts, enter into and provide amendments and supplements including any portion of the Escrow Shares received by Shareholders’ Representative pursuant to and waivers the terms hereof in respect accordance with the terms of this Agreement and the Option Agreementother agreements, (iv) to retain legal counsel, accountants, consultants documents and other experts, and incur any other reasonable expenses, instruments executed in connection withherewith. Notwithstanding the foregoing, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for may resign at any time by providing written notice of intent to resign to the accomplishment ofIndemnifying Parties, any which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or all (B) the appointment of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed a successor by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIndemnifying Parties. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from By executing this Agreement, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to Parent shall constitute notice to or from each act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under Indemnifying Parties in accordance with the terms of this Agreement or applicable law. Each Selling Party and (y) agrees to receive correspondence from the Shareholders’ Representativeperform its obligations under, including in electronic formand otherwise comply with, this Section 10.6.
(b) The Shareholders’ Representative shall not be liable entitled to receive reimbursement from, and be indemnified by, the Indemnifying Parties for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any act done or omitted hereunder as of the powers conferred upon the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally hereunder, (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify i) the Shareholders’ Representative shall incur no responsibility whatsoever to any Indemnifying Parties by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith (ii) the Shareholders’ Representative shall be entitled to rely on the part advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Shareholders’ Representative pursuant to such advice shall in no event subject the Shareholders’ Representative to liability to any Indemnifying Parties. Each Indemnifying Party shall indemnify, severally in proportion to its Pro Rata Share and not jointly, the Shareholders’ Representative against all Losses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acceptance acts or administration omissions of his duties the Shareholders’ Representative hereunder. No provision The foregoing indemnification shall not apply in the event of this Agreement shall require any action or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance Indemnifying Parties as to the existence of a deficiency toward the payment of any such indemnification amount, each Indemnifying Party shall promptly deliver to the Shareholders’ Representative full payment of its powers, rights, such Indemnifying Party’s share of the amount of such deficiency in proportion to such Indemnifying Party’s Pro Rata Share. The Shareholders’ Representative shall only have the duties or privileges under expressly stated in this Agreement on behalf of any Selling Partiesand shall have no other duty, express or implied. The Shareholders’ Representative may in good faith engage attorneys, accountants and other professionals and experts at the cost and expense of the Indemnifying Parties.
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing Date and/or any termination of this Agreement.
(d) CHC and the Company shall have the right to rely conclusively upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the informationIndemnifying Parties.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, reportsincompetency, statements bankruptcy or liquidation of any Indemnifying Party and opinions prepared or presented by counsel or other professionals retained by it(ii) shall survive the consummation of the Share Purchase, and any action taken by the Shareholders’ Representative based on such reliance pursuant to the authority granted in this Agreement shall be deemed conclusively to have been taken in good faitheffective and absolutely binding on each Indemnifying Party notwithstanding any contrary action of or direction from such Indemnifying Party, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(cf) Notwithstanding Each of SKS and CHC acknowledges and agrees that the foregoing provisions in this ARTICLE VIII, or any provision Shareholders’ Representative is a party to the contrary set forth in this Agreement or solely to perform certain administrative functions in connection with the Option Agreementconsummation of the transactions contemplated hereby. Accordingly, each of SKS and CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a Shareholder (if applicable), the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)no liability to, and the powers conferred on shall not be liable for any Losses of, any of SKS or CHC or to any Person in connection with any obligations of the Shareholders’ Representative herein and under this Agreement or otherwise in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision respect of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementtransactions contemplated hereby, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change except to the nature extent such Losses shall be proven to be the direct result of fraud by the indemnity obligations), Shareholders’ Representative in each case connection with respect to clauses (i), (ii) and (iii) the performance by the Shareholders’ Representative of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.its obligations hereunder
Appears in 1 contract
Samples: Share Purchase Agreement (ComSovereign Holding Corp.)
Shareholders’ Representative. (a) The Selling PartiesApproval of the Merger by the Shareholders shall also constitute the appointment of Axxxx Xxxxxxx to act as representative of the Shareholders and to act as each of the Shareholder’s attorney-in-fact and representative (the “Shareholders’ Representative”), by adopting to do any and all things and to execute any and all documents, in such party’s name, place and stead, in any way which such party could do if personally present, in connection with this Agreement and the Escrow Agreement and the transactions contemplated herebyhereby or thereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf including without limitation to amend, cancel or extend, or waive, any of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect terms of this Agreement and the Option AgreementEscrow Agreement or to receive any notice required hereunder or thereunder. SafeNet, (iv) Merger Sub and the Surviving Corporation shall be entitled to retain legal counselrely, accountantsas being binding upon such Shareholders, consultants upon any document or other paper believed by SafeNet, the Merger Sub or the Surviving Corporation to be genuine and other experts, and incur any other reasonable expenses, in connection with, correct and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed have been signed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including and SafeNet, the Merger Sub and the Surviving Corporation shall not be liable to any Shareholder for any action taken or omitted to be taken by SafeNet, the Merger Sub or the Surviving Corporation in electronic formsuch reliance. The Shareholders’ Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice, pursuant to Article 8 and Sections 1.6(c), 11.9 and 11.14 of this Agreement and to settle any claim or controversy arising under this Agreement or the Escrow Agreement.
(b) The Shareholders’ Representative may resign at any time by giving written notice of resignation, at least sixty (60) days prior to such resignation, to SafeNet, the Surviving Corporation and the Shareholders, and the Shareholders’ Representative may be removed at any time with or without cause by upon the approval of two-thirds in interest (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the Shareholders at the Closing of the Merger) of the Shareholders (collectively, the “Approving Shareholders”). Upon any such resignation or removal, such Approving Shareholders shall select a successor Shareholders’ Representative. In the case of a resigning Shareholders’ Representative, if no successor Shareholders’ Representative shall have been so appointed by the Approving Shareholders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders’ Representative), within thirty (30) days after the retiring Shareholders’ Representative’s giving of notice of resignation, then the retiring Shareholders’ Representative (or SafeNet if the retiring Shareholders’ Representative does not act) may, on behalf of the Approving Shareholders, appoint a successor Shareholders’ Representative. Upon the acceptance of any appointment as Shareholders’ Representative thereunder by a successor Shareholders’ Representative, such successor Shareholders’ Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Shareholders’ Representative, and the retiring Shareholders’ Representative shall be discharged from its duties and obligations as Shareholders’ Representative under this Agreement and the Escrow Agreement. After any retiring Shareholders’ Representative’s resignation or removal hereunder as Shareholders’ Representative, the provisions of this Section 11.1 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Shareholders’ Representative.
(c) The grant of authority provided for in this Section 11.1: (a) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto and (b) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(d) The duties and responsibilities of the Shareholders’ Representative hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied under this Agreement or any other agreement among the parties hereto, whether or not the Shareholders’ Representative has knowledge thereof. The Shareholders acknowledge that the Shareholders’ Representative is acting solely as a stakeholder at the request of, and for the convenience of, the Shareholders, that the Shareholders’ Representative shall not be deemed to be the agent of the Company or the Shareholders (except, in the case of the Shareholders, as contemplated hereunder and under the Escrow Agreement), and that the Shareholders’ Representative shall be released and exculpated of all liability whatsoever arising from, related to, in connection with or resulting from its activities as Shareholders’ Representative and shall not be liable to the Company or the Shareholders for any act done or omitted hereunder as the Shareholders’ Representative while acting omission on its part, unless taken, not taken or suffered in good bad faith and without negligence and any act done or omitted pursuant to the advice in willful disregard of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability this Agreement or expense incurred without involving gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(ce) Notwithstanding Except as otherwise contemplated hereunder or under the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power be entitled to rely, as being binding upon each Shareholder, upon any document or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not other paper believed by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do be genuine and correct and to have been signed by such Shareholder, and the Shareholders’ Representative shall not be liable to any Shareholder for any action taken or cause omitted to be done taken by the Shareholders’ Representative in such reliance.
(f) The Shareholders agree that they shall indemnify the Shareholders’ Representative in an amount and of such character as the Shareholders’ Representative shall reasonably require to institute or defend any action or legal proceeding involving any matter referred to in this Agreement, including any and all claims, losses, liabilities, costs, judgments, attorneys’ fees and other expenses of every kind and nature whatsoever in relation thereto.
(including g) Except as otherwise contemplated hereunder, the Shareholders’ Representative shall not be liable to the Shareholders for any action taken or not taken by amendingit in good faith and believed by it to be authorized by, modifying or waiving any provision of within the rights or powers conferred upon it by, this Agreement and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken, not taken or suffered by it hereunder in good faith and in accordance with, or in reliance upon, the Option Agreementopinion or advice of such counsel.
(h) that The Shareholders hereby agree to pay or reimburse the Shareholders’ Representative upon request for all expenses, disbursements and advances, including reasonable attorney’s fees, incurred or made by the Shareholders’ Representative in connection with the carrying out of its duties hereunder, which payment or reimbursement shall not exceed each such Shareholder’s pro rata portion (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the Shareholders at the Closing of the Merger), unless such Shareholder has committed fraud and such fraud has given rise to such expenses or amounts.
(i) results in The parties hereto agree that neither SafeNet, the amounts payable hereunder to Surviving Corporation nor the Merger Sub shall be liable for any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement action taken or not taken by the Shareholders’ Representative hereunder. Each of the Shareholders and the Option AgreementShareholders’ Representative agree that all disputes, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity controversies or other obligations matters arising between or among the Shareholders and the Shareholders’ Representative, and any and all liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i)such disputes, (ii) controversies or other matters, shall be limited to such parties solely, and (iii) of this Section 8.1(c)that neither SafeNet nor any other party shall have any responsibility or liability whatsoever with respect to such disputes, without first obtaining the prior written approval of the Selling Partiescontroversies or other matters.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEach Seller hereby appoints and empowers effective from and after the date of this Agreement, the Shareholders’ Representative, for the benefit of the Sellers as the exclusive agent and attorney-in-fact to act on behalf of each Seller, in connection with and to facilitate the consummation of the transactions contemplated by adopting this Agreement, including pursuant to the Ancillary Agreements to which a Seller is a party, which shall include the power and authority:
(i) to execute and deliver the Ancillary Agreements and any share transfer deeds to which a Seller is a party (with such modifications or changes therein as to which the Shareholders’ Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the Ancillary Agreements to which a Seller is a party and the consummation of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser thereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable;
(iii) to apply the Consideration to the payment of (or reimbursement of the Shareholders’ Representative for) expenses and liabilities which the Shareholders’ Representative may actually incur in the performance of its duties pursuant to this Agreement or the Ancillary Agreements to which a Seller is a party or to the acquisition of the minority interests in the Subsidiaries set forth on Section 6.3(b) of the Company Disclosure Letter;
(iv) if one or more Sellers indemnifies or otherwise makes any payment in excess of its pro rata share with respect to any pro rata obligations under this Agreement, to require the other Sellers to pay, on a pro rata basis, or apply payments owed to all of the Sellers, on a pro rata basis, to reimburse such Seller(s) who paid in excess of its pro rata share, to the extent of such excess;
(v) as the Shareholders’ Representative, to enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interests of all Sellers arising out of or under or in any manner relating to this Agreement and the Ancillary Agreements, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under either of the this Agreement or the Ancillary Agreements for and on behalf of the Selling PartiesSellers, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, Purchaser, the authority Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) to perform the obligations of assert or institute any Action; (B) investigate, defend, contest or litigate any Action initiated by Parent, Purchaser or any other Person, or by any Governmental Entity against the Shareholders’ Representative set forth in this Agreement and and/or any of the Option AgreementSellers and/or the Escrow Account, (ii) to give and receive notices process on behalf of any or all Sellers in any such Action and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary compromise or appropriate in the judgment of settle on such terms as the Shareholders’ Representative for the accomplishment ofshall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or all investigation; (C) file any proofs of the foregoing. K Laser hereby accepts its appointment debt, claims and petitions as the Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten deem advisable or necessary; (10D) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices settle or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to compromise any action for which the Selling Parties’ consent is required Actions asserted under the terms of either this Agreement or applicable law. Each Selling Party agrees to receive correspondence the Ancillary Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action, it being understood that the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable have any obligation to take any such actions, and shall not have any liability for any act done failure to take any such actions;
(vi) to refrain from enforcing any right of the Sellers or omitted hereunder as any of them and/or the Shareholders’ Representative while acting arising out of or under or in good faith and without negligence and any manner relating to this Agreement, the Ancillary Agreements; provided, however, that no such failure to act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative, except as otherwise provided in this Agreement or in the Ancillary Agreement, as applicable, shall be deemed a waiver of any such right or interest by the Shareholders’ Representative or by the Sellers unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative;
(vii) 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 Shareholders’ 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 the Ancillary Agreements; and
(viii) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Sellers in connection with any matter arising out of under this Agreement or the Ancillary Agreements as the Shareholders’ Representative deems appropriate.
(b) (i) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Sellers, for expenses, charges and Losses incurred in connection with the acceptance performance of its services hereunder and for Losses as provided below, which expenses, charges, Losses shall first be paid or administration of his duties hereunder. No provision of this Agreement reimbursed from any Consideration otherwise distributable to Sellers hereunder (in which case Parent shall require cause Purchaser to, and Purchaser shall, first pay such amounts to the Shareholders’ Representative on demand therefor and thereafter distribute any remaining amounts to expend or risk its own funds or otherwise incur any financial liability in Sellers); provided, however, that Parent shall cause Purchaser to, and Purchaser shall, only pay such amounts as, at the exercise or performance times and to the extent that payments of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesConsideration are made to the Sellers. The Shareholders’ Representative may in good faith rely conclusively upon the informationalso retain a portion of any cash Consideration to fund expenses, reports, statements charges and opinions prepared or presented by counsel or other professionals retained by it, and any action taken Losses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in connection with this ARTICLE VIIISection 6.15, or with any provision excess being delivered to the contrary set forth in this Agreement or the Option Agreement, Sellers at such time as the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group determine. For purposes of all calculations of Consideration, any reimbursement and not matters pertaining to an individual Selling Party (for example but not by way other requests of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and Section 6.15(b)(i) shall be deducted from the Option Agreement, (ii) alters aggregate amount to be paid at any given time prior to determining the consideration payable to any Selling Party allocation of such payments pursuant to this Agreement or the Option Agreement, or (iiiSection 2.2(a) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Disclosure Letter.
Appears in 1 contract
Samples: Share Purchase Agreement (Watson Pharmaceuticals Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf Each of the Selling PartiesShareholders hereby constitutes and appoints G2BE as its representative (the "Shareholders' Representative") and its true and lawful attorney in fact, with the full power and authority in its name on its behalf:
(i) to perform act on such Shareholder's behalf in the obligations absolute discretion of the Shareholders’ ' Representative set forth in with respect to all matters relating to this Agreement and the Option Agreement, (ii) to give including the execution and receive notices and communicationsdelivery of any amendment, (iii) to agree tosupplement, negotiate, enter into and provide amendments and supplements to and waivers in respect or modification of this Agreement and the Option any waiver of any claim or right arising out of this Agreement; and
(ii) in general, (iv) to retain legal counseldo all things and to perform all acts, accountantsincluding executing and delivering all agreements, consultants certificates, receipts, instructions, and other experts, and incur any other reasonable expenses, instruments contemplated by or deemed advisable to effectuate the provisions in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 3.9.
(b) The Shareholders’ Representative appointment and grant of power and authority in Section 3.9(a) is coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and shall not be liable for terminated by any act done of any Shareholder or omitted hereunder as by operation of law, whether by the death or incapacity of any Shareholder or by occurrence of any other event. Each Shareholder hereby consents to the taking of any and all actions and the making of any decisions required and permitted to be taken or made by the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencethis Section 3.9. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify Each Shareholder agrees that the Shareholders’ ' Representative and hold it harmless against shall have no obligation or liability to any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and person for any action taken or omitted by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith, and each Shareholder shall indemnify and hold harmless the Shareholders' Representative from, and shall pay to the Shareholders' Representative the amount of, or reimburse the Shareholders' Representative for, any Loss that the Shareholders' Representative may suffer, sustain, or become subject to as a result of any such action or omission by the Shareholders' Representative under this Agreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Brigade and G2BE shall be entitled to rely upon any documents or any provision to the contrary set forth in this Agreement or the Option Agreement, other paper delivered by the Shareholders’ ' Representative shall only have as being authorized by the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Shareholders, and the powers conferred on the Shareholders’ Representative herein Brigade and in the Option Agreement G2BE shall not authorize be liable to any Shareholder for any action taken or empower the Shareholders’ Representative to do or cause omitted to be done any action taken by Brigade and G2BE based on such reliance.
(including by amending, modifying or waiving any provision of this Agreement or the Option Agreementd) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other Until all obligations or liabilities under this Agreement (includingshall have been discharged, for the avoidance of doubtShareholders who, any change immediately prior to the nature Closing are entitled in the aggregate to receive more than 50% of the indemnity obligations)Brigade Common Shares, in each case with respect may, from time to clauses (i)time upon notice to Brigade and G2BE, (ii) and (iii) of this Section 8.1(c), without first obtaining appoint a new Shareholders' Representative upon the prior written approval resignation of the Selling PartiesShareholders' Representative. If, after the resignation of the Shareholders' Representative, a successor Shareholders' Representative shall not have been appointed by the Shareholders within 15 Business Days after a notice to Brigade and G2BE, Brigade and G2BE may appoint a Shareholders' Representative from among the Shareholders to fill any vacancy so created by notice of such appointment to the Shareholders.
Appears in 1 contract
Samples: Share Exchange Agreement
Shareholders’ Representative. By executing this Agreement, each Shareholder irrevocably constitutes and appoints Robert Rouleau as its true and lawful agent and attorney-in-fact (a) The Selling Partiestxx "Xxxxxxxxxxrs' Representative"), by adopting with full powers of substitution, to act in the name, place and stead of each Shareholder with respect to the transactions contemplated hereby in accordance with the provisions of this Agreement and the transactions contemplated herebyEscrow Agreement, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and including, without limitation, to grant waivers on behalf of the Selling Parties, with the authority (i) each Shareholder or to perform the obligations of the Shareholders’ Representative set forth in enter into amendments to this Agreement and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Shareholders' Representative may deem necessary or appropriate in connection with any of the Option transactions contemplated by this Agreement or the Escrow Agreement, (ii) to give and receive notices and communications, (iii) to authorize delivery to Acquisition Sub and CalAmp of the Escrow Amount or other property from the Escrow Account in satisfaction of claims by Acquisition Sub Indemnified Parties, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection with, demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the Shareholder from time to time upon not less than 30 days prior written notice to Acquisition Sub and CalAmp; provided, however, that the Shareholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Amount agree to such removal and to the identity of the substituted shareholders' representative. Any vacancy in the position of Shareholders' Representative may be filled by approval of the holders of a majority in interest of the shares of Everest Escrow Account. The Shareholders agree that any such action, if material to the rights and obligations of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of Shareholders in the Selling Parties and to Parent and Purchaser. No bond shall be required reasonable judgment of the Shareholders’ ' Representative, shall be taken in the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. Notices or communications to or from The appointment of the Shareholders’ ' Representative to Parent shall constitute notice to or from each be deemed coupled with an interest and shall be irrevocable, and Acquisition Sub, CalAmp, the Escrow Agent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Selling Parties, except for notices related Shareholders' Representative as the act of the Shareholders in all matters referred to any action for which the Selling Parties’ consent is required under the terms of in this Agreement or applicable lawAgreement. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithreasonable judgment.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, In order to administer the transactions contemplated by adopting this Agreement and the transactions contemplated herebyEscrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, the Shareholders hereby irrevocably designate and appoint the Xxxxxxxx Xxxxx-Xxxxxxx as their representative for this Agreement and constitute K Laser the Escrow Agreement and as the Shareholders’ Representative attorney-in- fact and agent for and on behalf of each Shareholder (in such capacity, the Selling Parties"Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and theirs successors, with respect to all matters arising under this Agreement and the authority Escrow Agreement, including, without limitation, (i) to perform take all action necessary in connection with the indemnification obligations of the Shareholders’ Representative set forth in this Agreement Shareholders under Section 5.03, including, the defense or settlement of any claims and the Option Agreementmaking of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken Shareholders by the Shareholders’ Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Escrow Agreement.
(c) In the event that the Xxxxxxxx Xxxxx-Xxxxxxx or any substitute Shareholder Representative becomes unable to perform its responsibilities as Shareholder Representative or resigns from such position, Xxxxxxxx Xxxxx-Xxxxxxx shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Parent, the Buyer and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he, she or it were a party hereto.
(iid) alters All decisions and actions by the consideration payable Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Buyer, the Parent or the Escrow Agent relating to the indemnification obligations of the Shareholders under Section 5.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any Selling Party pursuant action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Option Escrow Agreement, rely on the advice of counsel, and for anything done, omitted or (iii) adds to or results suffered in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for good faith by the avoidance of doubt, any change Shareholder Representative shall not be liable to the nature Shareholders.
(e) The Buyer, the Company, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the indemnity obligations), in each case Shareholder Representative with respect to clauses (i)this Agreement and the Escrow Agreement, (ii) including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and (iii) no party hereunder shall have any cause of action against the Buyer, the Company, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Buyer, the Company, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Buyer, the Company, the Parent and the Escrow Agent, and each of their respective successors, assigns, officers, directors, stockholders, affiliates, employees, representatives and other agents, from and against any and all claims, liabilities, taxes, losses, damages or injuries, together with costs and expenses, including reasonable legal fees suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section 8.1(c), without first obtaining and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the prior written approval Shareholder Representative may incur costs and expenses on behalf of the Selling PartiesShareholders in his capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, Shareholders hereby irrevocably appoint constitutes and constitute K Laser appoints Wxxxx X. Xxxxxxx (the “Shareholders’ Representative”) as that Shareholder’s true and lawful agent and attorney-in-fact for the purposes specified in Section 12.13(b). This power of attorney is coupled with an interest and is irrevocable. The Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formserve without compensation.
(b) The Shareholders’ Representative shall not have full power and authority, on behalf of all Shareholders, to control, and resolve all disputes concerning matters described in Sections 2.2 and 2.4 through 2.8. In furtherance of the foregoing and with respect to those matters, the Shareholders’ Representative shall have the power to enter into any agreement in connection therewith, to exercise all or any of the powers, authority and discretion conferred upon it under this Agreement, to waive any terms and conditions of this Agreement, to give and receive notices on behalf of the Shareholders and to be liable for the Shareholders’ exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to the matters described in Sections 2.2, 2.4 through 2.8 and Section 10.4. The Shareholders’ Representative agrees to act done or omitted hereunder as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact.
(c) If, following the date of this Agreement, Wxxxx X. Xxxxxxx ceases to serve as the Shareholders’ Representative while acting in good faith for any reason, then the Principals shall elect, by a majority vote of the Principals that will be binding upon all of the Principals and without negligence the Other Shareholders, another Principal to serve as a successor to Mx. Xxxxxxx as the Shareholder’s Representative, and any act done or omitted pursuant that successor will thereupon be deemed to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative for all purposes under this Agreement and hold it harmless against any losswill be vested in all the powers, liability or expense incurred without gross negligence or bad faith on and subject to all of the part obligations, of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement Agreement.
(d) The Buyer and its Affiliates and their respective officers, directors, employees, agents, advisors and representatives shall be entitled to rely on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, without any change liability or obligation to the nature any of the indemnity obligations)Shareholders, in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining notwithstanding any knowledge on the prior written approval part of the Selling PartiesBuyer or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives of any dispute, disagreement or controversy regarding or involving any of the Shareholders.
Appears in 1 contract
Samples: Stock Purchase Agreement (Washington Trust Bancorp Inc)
Shareholders’ Representative. 10.6.1 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the Shareholders will be taken by a representative of the Shareholders (athe “Shareholders’ Representative”) on behalf thereof. The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the initial Shareholders’ Representative for and on behalf of the Selling Partieswill be Xxxxx Xxxxxxxxx. Upon his resignation, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest voting power of the Selling Parties from Company Securities at the time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Closing may designate a successor Shareholders’ Representative. Notices or communications to or from Any change in the Shareholders’ Representative to Parent shall constitute will become effective upon notice to or in accordance with Section 10.2. The Shareholders will indemnify and hold the Purchaser Indemnified Parties and their representatives harmless from each any claim of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms Shareholder arising out of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as omission by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance transactions contemplated by this Agreement.
10.6.2 Except as otherwise provided in this Agreement, any right or administration action that may be taken at the election of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action Shareholders will be taken by the Shareholders’ Representative based on behalf thereof. Each of the Shareholders hereby irrevocably appoints the Shareholders’ Representative, the agent and attorney‑in‑fact of each of the Shareholders for the purposes of acting in the name and stead of such reliance shall Shareholder in: (a) receiving, holding, directing the distribution and distributing the Transaction Consideration and paying any associated costs and expenses of the transactions hereunder required to be deemed conclusively to have been taken in good faith.
paid by such Shareholder; (b) giving and receiving all notices permitted or required by this Agreement and acting on Shareholders’ behalf hereunder for all purposes specified herein; (c) Notwithstanding delivering the foregoing provisions in this ARTICLE VIII, certificates or any provision instruments of transfer for the Shares endorsed or executed by Shareholders to the contrary set forth Purchaser at Closing and any and all assignments relating thereto; (d) agreeing with the Purchaser as to any final changes to this Agreement from the version that the Shareholders received and any amendments to this Agreement which the Shareholders’ Representative may deem necessary or advisable, including the extension of time in which to consummate the transactions contemplated by this Agreement, and the waiver of any closing conditions; (e) employing legal counsel; (f) paying any legal and any other fees and expenses incurred by the Shareholders’ Representative in consummating the transactions contemplated by this Agreement; (g) defending or settling claims arising under this Agreement or the Option Escrow Agreement; and (h) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which the Shareholders’ Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement, as fully as if such Shareholders were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other Parties to this Agreement, and in consideration of those interests and for the purpose of completing the transactions contemplated hereby, this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by Shareholders or by operation of Law, whether by the termination of the Shareholders’ Representative shall only have or by the power occurrence of any other event. If any Shareholder should die or authority become incompetent or incapacitated, or any other event should occur before the delivery of certificates or other instruments of transfer representing the Shares pursuant to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), such certificates and instruments shall be delivered by or on behalf of such Shareholder in accordance with the terms and conditions of this Agreement, and the powers conferred on all actions taken by the Shareholders’ Representative herein and in the Option pursuant to this Agreement shall be as valid as if such death, incompetence, or incapacity or other event had not authorize occurred, regardless of whether the Purchaser or empower the Shareholders’ Representative, or any of them, shall have received notice of such death, incompetence, incapacity, or other event. The Shareholders’ Representative will be promptly reimbursed by the Shareholders for all reasonable expenses, disbursements and advances incurred by the Shareholders’ Representative in such capacity upon demand. The Shareholders jointly and severally agree to do or cause to be done indemnify and hold harmless Shareholders’ Representatives for and from any action (including by amendingloss, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementliability, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexpense, or (iii) adds to or results in an increase of any Selling Party’s indemnity charge, damages, claims or other obligations it may incur as a result of its duties hereunder or liabilities under this Agreement (includingany of its actions or inactions as such, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesexcept as may result from its willful misconduct or gross negligence.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEach Employee Shareholder does hereby appoint Xxxxxx as such Employee Shareholder’s true and lawful attorney-in-fact and agent (the “Shareholders’ Representative”), by adopting to act on behalf of such Employee Shareholder in any litigation, arbitration or other matter involving this Agreement Agreement, to do or refrain from doing all such further acts and the transactions contemplated herebythings, hereby irrevocably appoint and constitute K Laser to execute all such Contracts, certificates and other documents as the Shareholders’ Representative for and on behalf of the Selling Parties, shall deem necessary or appropriate in connection with the authority transactions contemplated by this Agreement, including, the power:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, ;
(ii) to receive funds and give receipts therefor;
(iii) to receive service of process with respect to any claim under this Agreement;
(iv) to agree to, negotiate, execute and deliver Contracts, documents and instruments;
(v) to assert, negotiate, enter into settlements and provide amendments compromises of, and supplements to demand arbitration and waivers in comply with orders of courts and awards of arbitrators with respect of this Agreement to, any other claim by any Buyer Indemnified Party against any Employee Shareholder or by any such Employee Shareholder against the Buyer or any dispute between any Buyer Indemnified Party and the Option Agreement, any such Employee Shareholder; and
(ivvi) to retain legal counsel, accountants, consultants and take or refrain from taking all other expertsaction, and incur any other reasonable expensesexecute and deliver all additional Contracts, in connection withdocuments, certificates and to take all actions instruments, as the Shareholders’ Representative may deem necessary or appropriate in connection with the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representativetransactions contemplated by this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Employee Shareholders from time to time upon not less than ten (10) days’ 10 days prior written notice to all the Buyer; provided, however, that the Shareholders’ Representative may not be removed unless a majority in interest (based on the aggregate number of Shares held by the Employee Shareholders at the Closing) of the Selling Parties Employee Shareholders agree to such removal and to Parent and Purchaserthe identity of the substituted agent. A vacancy in the position of the Shareholders’ Representative may be filled by the affirmative vote of a majority in interest (based on the aggregate number of Shares held by the Employee Shareholders at the Closing) of the Employee Shareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Employee Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Employee Shareholders for any lawful and proper act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefraud, gross negligence or willful misconduct. The Selling Parties Employee Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. No provision A decision, act, consent or instruction of the Shareholders’ Representative, including to an amendment, extension or waiver of this Agreement pursuant to Section 7.02, shall require constitute a decision of the Employee Shareholders and shall be final, binding and conclusive upon the Employee Shareholders; and the Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of the Shareholders’ Representative to expend as being the decision, act, consent or risk its own funds or otherwise incur any financial liability in instruction of the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesEmployee Shareholders. The Shareholders’ Representative may Buyer and the Company are hereby relieved from any liability to any Person, including any Employee Shareholder, for any acts done by them in good faith rely conclusively upon the informationaccordance with or reliance on such decision, reportsact, statements and opinions prepared consent or presented by counsel or other professionals retained by it, and any action taken by instruction of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding The authority granted hereunder is deemed to be coupled with an interest.
(d) All notices or other communications required to made or delivered by the foregoing provisions in this ARTICLE VIII, or any provision Buyer to the contrary set forth in this Agreement or the Option Agreement, Employee Shareholders shall be made to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature benefit of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEmployee Shareholders.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and appoint Garrx xx the transactions contemplated herebyShareholders' Representative, hereby irrevocably appoint and constitute K Laser to serve as the Shareholders’ Representative ' agent, proxy and attorney-in-fact for and on behalf the limited purposes set forth in this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, to agree toto the amount of the actual Closing Date Debt, negotiateClosing Date Current Assets and Closing Date Current Liabilities pursuant to Sections 1.5(a), enter into and provide amendments and supplements to and waivers in respect agree to resolution of this Agreement and the Option Agreementall Claims hereunder, (iv) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection withwith the performance by the Shareholders' Representative of this Agreement, and (v) to take do each and every act and exercise any and all actions necessary rights which such Shareholder or appropriate Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the judgment Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ ' Representative for and shall survive the accomplishment ofdeath, bankruptcy or other incapacity of any or all Shareholder.
(c) Each of the foregoing. K Laser Shareholders hereby accepts its appointment as agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders’ Representative. Such agency may Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be changed effective if approved in writing by persons who were the holders of a majority in interest of the shares of Everest Corporations' Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) Garrx xxxll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the Selling Parties from time holders of a majority of the Corporations' Stock immediately prior to time upon not less than ten (10) days’ prior the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to all WCI of the Selling Parties such change and such substituted representative shall then be deemed to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms all purposes of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. By consenting to and approving this Agreement, and pursuant to the terms of the Transmittal Letters, the Company Shareholders have or will:
(a) The Selling Parties, by adopting this Agreement (i) irrevocably constitute and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Xxxx X. Xxxxx as the Shareholders’ Representative and true and lawful attorney in fact and agent; and (ii) authorize him to act for the Company Shareholders and in their name, place and xxxxx, in any and all capacities to do and perform every act and thing required or permitted to be done after the Effective Time in connection with this Agreement and the other Transaction Documents, as fully to all intents and purposes as the Company Shareholders might or could do in person, including taking any and all action on behalf of the Selling PartiesCompany Shareholders from time to time as contemplated hereunder. Any delivery by the Shareholders’ Representative of any waiver, with amendment, agreement, opinion, certificate or other document executed by the authority Shareholders’ Representative will bind the Company Shareholders by such documents or action as fully as if each of the Company Shareholders had executed and delivered such documents;
(ib) to perform agree that upon the death, disability or incapacity of the initial Stockholders’ Representative, that the Shareholders’ Representative’s executor, guardian or legal representative, as the case may be, shall appoint a replacement reasonably believed by such person as capable of carrying out the duties and performing the obligations of the Shareholders’ Representative set forth in this Agreement hereunder within thirty (30) days of such death, disability or incapacity;
(c) agree that Parent and Surviving Corporation shall be authorized to rely conclusively on the Option Agreement, (ii) written instructions and decisions of the Shareholders’ Representative as to give any actions required or permitted to be taken by the Company Shareholders or the Shareholders’ Representative under Section 1.5 and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect Article VIII of this Agreement and the Option Escrow Agreement, and none of such Company Shareholders shall have any cause of action against Parent for any action taken by Parent in reliance upon such written instructions or decisions of the Shareholders’ Representative;
(ivd) to retain legal counsel, accountants, consultants agree that all written decisions and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment instructions of the Shareholders’ Representative for in relation to this Agreement and the accomplishment of, any or other Transaction Documents shall be conclusive and binding on all of the foregoing. K Laser hereby accepts its appointment as Company Shareholders and no Company Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same or any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative. Such agency ;
(e) agree that remedies available at law for any breach of the provisions of this Section 1.14 may be changed inadequate; therefore Parent may be entitled to temporary and permanent injunctive relief relating to any such breach without the necessity of proving damages if Parent brings an action to enforce the provisions of this Section 1.14;
(f) agree, acknowledge and confirm that the provisions of this Section 1.14 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or legal incapacity, granted by the holders of a majority in interest of the shares of Everest of the Selling Parties from time each Company Shareholder to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative and shall be binding upon the executors, heirs, personal representatives and successors of each Company Shareholder.
(g) agree that the Shareholders’ Representative will be entitled to Parent shall constitute notice to be compensated by the Company Shareholders from the Escrow Assets for any and all actions, liabilities, losses, damages, fines, penalties, fees, costs, expenses or from amounts paid in settlement (in each case, including reasonable attorneys’ fees and expenses), whether or not involving a third party, arising as a result of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from his serving as the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as those incurred by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Affiliates of the Shareholders’ Representative and arising out or any agents or representatives of the Shareholders’ Representative or such Affiliates in connection with the acceptance protection, defense, enforcement or administration other expense of his duties hereunder. No provision of any rights under this Agreement shall require or any other Transaction Document. Any and all payments made by or on behalf of any Company Shareholder under this provision will be made free and clear of any present or future taxes, deductions, charges or withholdings and all liabilities with respect thereto;
(h) agree that the Shareholders’ Representative will not be liable to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and Company Shareholders for any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party faith pursuant to this Agreement or any other Transaction Document, and shall only be liable to the Option AgreementCompany Shareholders for acts or omissions which constitute gross negligence or intentional misconduct of the Shareholders’ Representative. The Shareholders’ Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable in such capacity for any of the obligations of Parent, Surviving Corporation, the Company or (iii) adds the Company Shareholders hereunder, and Parent, Surviving Corporation and the Company agree that they will not look to or results the Shareholders’ Representative, acting in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (includingsuch capacity, for the avoidance satisfaction of doubtany obligations to be performed by the Company Shareholders hereunder; and
(i) agree to hold the Shareholders’ Representative harmless and indemnify the Shareholders’ Representative, any change to severally (and not jointly) in accordance with the nature amount of the indemnity obligations)Merger Consideration received by such indemnifying Company Shareholders, in each case with respect to clauses any and all loss, damage or liability and expenses (i), (iiincluding reasonable legal fees) and (iii) which any Company Shareholders may sustain as a result of this Section 8.1(c), without first obtaining any action taken in good faith by the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy executing and delivering this Agreement, by adopting this Agreement and the transactions contemplated hereby, each Shareholder hereby irrevocably appoint and constitute K Laser as agrees that the Shareholders’ Representative for shall be entitled to take any action under Article III and on behalf Article XIV of this Agreement without consultation with, notice to, or agreement by, such Shareholder, including the exercise of the Selling Parties, with the authority power to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with orders of courts with respect to and waivers in respect claims under this Article XIV of this Agreement and or the Option Escrow Agreement, (ivii) to retain legal counsel, accountants, consultants and other expertsresolve any claims under this Article XIV of this Agreement or the Escrow Agreement, and incur any other reasonable expenses, in connection with, and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or of the foregoing and all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties other terms, conditions and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms limitations of this Agreement or applicable lawand the Escrow Agreement and the transactions contemplated hereby and thereby. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not Shareholder will be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented bound by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in connection with this Agreement or the Option Escrow Agreement and the transactions contemplated hereby and thereby. The Shareholders’ Representative will incur no liability to any Shareholder (i) with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor (ii) for any other action or inaction taken pursuant to this Agreement, except for its own willful misconduct or bad faith. In all questions arising under this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby, the Shareholders’ Representative shall only have may rely on the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way advice of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)counsel, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall will not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liable to any Selling Party being distributed Shareholder for anything done, omitted or suffered in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesgood faith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Matthews International Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Gxxxx Xxxxxxxxx hereby is irrevocably constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Shareholders and each of them (“Shareholders’ Representative for Representative”) with respect to any and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree all matters relating to, negotiatearising out of, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, or in connection with, the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), including for purposes of taking any action or omitting to take action on behalf of Shareholders thereunder. All actions, notices, communications and determinations by or on behalf of Shareholders under such documents shall be given or made by Shareholders’ Representative and all actions necessary or appropriate in the judgment such actions, notices, communications and determinations by Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall will not be liable to any Shareholder for any act done taken or omitted hereunder by it as the permitted under this Agreement, except if such act is taken or omitted in bad faith or by willful misconduct. The Shareholders’ Representative while acting will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith and without negligence and any act done or omitted pursuant believes to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegenuine (including facsimiles thereof). The Selling Parties shall Shareholders agree, severally (and but not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative for, and to hold it the Shareholders’ Representative harmless against against, any loss, liability or expense incurred without gross negligence willful misconduct or bad faith on the part of the Shareholders’ Representative and Representative, arising out of or in connection with the acceptance or administration Shareholders’ Representative’s carrying out its duties as representative for the Shareholders under this Agreement, including costs and expenses of his duties hereunder. No provision of this Agreement shall require successfully defending the Shareholders’ Representative to expend or risk its own funds or otherwise incur against any financial claim of liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partieswith respect thereto. The Shareholders’ Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith rely conclusively upon and in accordance with the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on opinion of such reliance shall be deemed conclusively to have been taken in good faithcounsel.
(c) Notwithstanding If Shareholders’ Representative dies or becomes legally incapacitated, then those other Shareholders holding a majority of the foregoing provisions Shares as of the date hereof promptly shall designate in this ARTICLE VIIIwriting to Parent a single individual to replace the deceased or legally incapacitated Shareholders’ Representative as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or Shareholders so fail to designate a successor Shareholders’ Representative, or any provision to the contrary set forth in this Agreement or the Option Agreement, then Parent may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. If the Shareholders’ Representative becomes unable or unwilling, for any reason, to serve as representative for the Shareholders, such other Person or Persons as may be designated by Shareholders holding a majority of the voting interests of the Company Preferred Stock immediately prior to the Closing, shall only have succeed the power Shareholders’ Representative as the representative of the Shareholders in all matters under this Agreement and the transactions contemplated hereby.
(d) Without limiting the generality of the foregoing, Shareholders’ Representative is designated as the sole and exclusive agent, representative and attorney-in-fact for Shareholders for all purposes related to this Agreement (including (i) service of process upon Shareholders, (ii) executing and delivering to Parent or authority to act any other Person on behalf of any of or all Shareholders any and all instruments, certificates, documents and agreements with respect to matters pertaining the transactions contemplated by the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), and any other instrument, certificate, document or agreement referred to in Section 8.02, and (iii) receipt of all notices on behalf of Shareholders with respect to any matter, suit, claim, action or proceeding arising with respect to the Selling Parties sale of the Shares or any transaction contemplated by the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), including the defense, settlement or compromise of any claim, action or proceeding pursuant to Article X), and Shareholders may act, with respect to all matters under the Transaction Documents (other than the Lock-up Agreements and Employment Offer Letters), only through the Shareholders’ Representative. Parent shall be entitled to rely on the authority of the Shareholders’ Representative as a group the agent, representative and not matters pertaining attorney-in-fact of Shareholders for all purposes under the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters) and shall have no liability for any such reliance. None of Shareholders may revoke the authority of Shareholders’ Representative. Each Shareholder hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by Shareholders’ Representative in the exercise of the power-of-attorney granted to Shareholders’ Representative pursuant to this Section 2.15, which power-of-attorney, being coupled with an individual Selling Party interest, is irrevocable and shall survive the death, incapacity or incompetence of such Shareholder. Any payment made to Shareholders’ Representative pursuant to any of the Transaction Documents (for example but not by way of limitationother than the Trading Restriction Agreements and the Employment Offer Letters) shall be deemed to have been made to Shareholders. Promptly after receiving any such payment, an action against an individual Selling Party for Shareholders’ Representative shall deliver to each Shareholder his, her or its individual breach pro rata portion of a such payment. Without limiting the foregoing, Shareholders hereby covenant in this Agreement)and agree to defend, indemnify and hold harmless the powers conferred on members of the Parent Indemnified Group from and against any Losses arising out of any claim that Shareholders’ Representative herein and in the Option Agreement shall not authorize failed to distribute to Shareholders (or empower the properly allocate among them) any payments received by Shareholders’ Representative to do or cause to be done any action under the Transaction Documents (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement the Trading Restriction Agreements and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligationsEmployment Offer Letters), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Liveperson Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Xxxxxx X. Xxxxxxx is hereby appointed as the Principal Shareholders’ and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative true and lawful representative, proxy, agent and attorney-in-fact (the “Shareholders’ Representative”) for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option AgreementPrincipal Shareholders in connection with or relating to the Transaction Documents and the Contemplated Transactions, (ii) including, without limitation, to give and receive notices and communications, (iii) to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, to receive and deliver amounts comprising the Closing Purchase Consideration and the Post-Closing Purchase Consideration, to authorize delivery of cash from each of the Escrow Accounts in satisfaction of claims pursuant to ARTICLE VIII hereof, to object to or accept any claims against or on behalf of the Shareholders and Principal Shareholders pursuant to ARTICLE VIII, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the judgment sole opinion of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties at any time and from time to time by the action of Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, and shall become effective upon not less than ten thirty (1030) days’ days prior written notice to all ICF. Except as provided in the foregoing sentence, in the event that for any reason the most recent Shareholders’ Representative shall no longer be serving in such capacity, including, without limitation, as a result of the Selling Parties and to Parent and Purchaser. No bond shall be required death, resignation, or incapacity of the Shareholders’ Representative, either (i) the outgoing Shareholders’ Representative shall appoint a successor Shareholders’ Representative or (ii) if the outgoing Shareholders’ Representative is unable, unwilling or otherwise fails to appoint a successor Shareholder Representative, then Xxxxxxxx X. Xxxxxx shall serve as the successor Shareholders’ Representative, or (iii) in the event that Xxxxxxxx X. Xxxxxx is unable or unwilling to serve as successor Shareholders’ Representative, Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, shall designate another Person to act as Shareholders’ Representative, such that at all times there will be a Shareholders’ Representative with the authority provided hereunder. Notices Any change in the Shareholders’ Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to ICF. The Shareholders’ Representative shall not receive compensation for his or her services. Notices, deliveries or communications to or from the Shareholders’ Representative by or to Parent any of the parties to the Transaction Documents shall constitute notice notices, deliveries or communications to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in his capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegross negligence or willful misconduct on his or her part. The Selling Parties Principal Shareholders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense incurred without nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) that may be sustained or suffered by the Shareholders’ Representative in connection with the administration of its duties hereunder, except where such Losses arise from or are the result of the Shareholders’ Representative’s gross negligence or bad faith on willful misconduct.
(c) Any decision, act, consent or instruction taken or given by the part Shareholders’ Representative pursuant to this Agreement shall be and constitute a decision, act, consent or instruction of all Shareholders and shall be final, binding and conclusive upon each such Shareholder and the Escrow Agent, ICF, and ICF Holdings and, following the completion of the Closing, Synergy, ICF and ICF Holdings may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each and arising out every Shareholder and shall have no duty to inquire as to the acts and omissions of the Shareholders’ Representative. The Escrow Agent, Synergy, ICF and ICF Holdings are hereby relieved from any liability to any Person for any acts done by them in accordance with, or in connection otherwise with respect to any aspect of, such decision, act, consent or instruction of the acceptance or administration of his duties hereunder. No provision of this Agreement shall require Shareholders’ Representative.
(d) Notices given to the Shareholders’ Representative in accordance with Section 9.2 shall constitute notice to expend the Shareholders or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersPrincipal Shareholders, rightsas applicable, duties or privileges for all purposes under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Each Shareholder hereby irrevocably appoint and constitute K Laser as appoints the Shareholders’ Representative for as its or his representative, attorney-in-fact, and on behalf of the Selling Partiesagent, with full power of substitution to act in the authority (i) to perform name, place, and stead of such Shareholder in accordance with the obligations terms and provisions of the this Agreement. By executing this Agreement, Shareholders’ Representative set forth in this Agreement accepts his appointment and the Option Agreement, (ii) authorization to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the act as Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under accordance with the terms of this Agreement or applicable law. Each Selling Party hereof and agrees to receive correspondence from the Shareholders’ Representative, including in electronic formperform his obligations hereunder and otherwise comply with this Section 12.10.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder is hereby exclusively authorized after the Closing Date to take such action as the Shareholders’ Representative while Representative, acting in good faith and without negligence his sole discretion, deems necessary, appropriate, or convenient to perform the actions contemplated by this Agreement and any other action reasonably related thereto. Without limiting the generality of the foregoing, the Shareholders’ Representative is specifically authorized:
(i) to assert claims, make demands, and commence actions on behalf of any Shareholder under this Agreement;
(ii) to act done on behalf of any Shareholder in connection with claims and proceedings under Section 2.8, 2.9 or omitted pursuant this Section 12;
(iii) to retain and compensate attorneys, accountants, and other professionals or consultants to assist in performing his duties hereunder;
(iv) to give such instructions and do such other things and refrain from doing such things as he shall deem appropriate to carry out the advice provisions of counsel this Agreement;
(v) to give and receive, on Shareholders’ behalf, all consents and notices under this Agreement and the Escrow Agreement;
(vi) to distribute any amounts he receives on behalf of Shareholders under the Escrow Agreement; and
(vii) to perform all actions, exercise all powers, and fulfill all duties otherwise assigned to him in this Agreement.
(c) The Shareholders’ Representative is hereby granted the sole and exclusive authority to act on behalf of each Shareholder in respect of all matters arising under Section 2.8, 2.9 or this Section 12, notwithstanding any dispute or disagreement among the Shareholders, and no Shareholder shall be conclusive evidence have any authority to act unilaterally or independently of the Shareholders’ Representative in respect to any such good faith matter.
(d) The Shareholders shall, jointly and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everestseverally, indemnify the Shareholders’ Representative for, and hold it the Shareholders’ Representative harmless against against, any loss, liability or expense Losses incurred without gross negligence willful misconduct or bad faith on the part of the Shareholders’ Representative and Representative, arising out of or in connection with the acceptance or administration of Shareholders Representative’s carrying out his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesAgreement. The Shareholders’ Representative may consult with counsel of his own choice and will have full and complete authorization and protection for any action taken and suffered by him in good faith rely conclusively upon and in accordance with the informationopinion of such counsel.
(e) The Shareholders’ Representative shall act solely in a representative capacity on behalf of each Shareholder. The Shareholders’ Representative shall owe no fiduciary obligations to any Shareholder. The Shareholders’ Representative is not expected to devote its full business time to the performance of his duties hereunder. The Shareholders’ Representative shall have no obligations to account to any for his time or actions hereunder.
(f) A decision, reportsact, statements and opinions prepared consent, or presented by counsel or other professionals retained by it, and any action taken by instruction of the Shareholders’ Representative based on such reliance shall constitute a decision of all Shareholders, as the case may be, and shall be deemed conclusively final, binding, and conclusive upon each Shareholder, as the case may be. Parent, Buyer, and the Escrow Agent may rely upon any decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of each Shareholder, as the case may be. Parent, Buyer, and the Escrow Agent are hereby relieved from any liability to have been taken any person for any acts done by them in good faithaccordance with any decision, act, consent, or instruction of the Shareholders’ Representative.
(cg) Notwithstanding Sellers and Shareholders agree to cause the foregoing provisions Phantom Stock Participants and Xxxxxxxxxx, to appoint, in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have as the power or authority to act with respect to matters pertaining representative of the Phantom Stock Participants and Xxxxxxxxxx for all purposes related to the Selling Parties Escrow Agreement on substantially the same terms as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant set forth in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties12.10.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective upon and pursuant to this Agreement, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative shall be hereby appointed as the representative of the holders of Company Stock and as the attorney-in-fact and agent for and on behalf of the Selling Parties, each holder of Company Stock solely with respect to any claims by any Indemnified Party under Article 8 or Article 9 of this Agreement. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the authority (i) to perform the obligations of take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative set forth in under this Agreement and the Option Agreement, including the exercise of the power to (iii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, commence any suit, action or proceeding, and supplements to and waivers in comply with orders of courts with respect to, claims by any Indemnified Party under Article 8 or Article 9 of this Agreement and the Option Agreement, and (ivii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the The Shareholders’ Representative will have sole authority and power to Parent shall constitute notice to or from act on behalf of each former shareholder of the Selling PartiesCompany with respect to the disposition, except settlement or other handling of all claims for notices related to any action for which the Selling Parties’ consent is required indemnification under the terms of this Agreement and all related rights or applicable lawobligations of the former shareholders of the Company arising under this Agreement. Each Selling Party agrees The Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as to keep the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant former shareholders of the Company reasonably informed with respect to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part actions of the Shareholders’ Representative and arising out of or in connection with pursuant to the acceptance or administration of his duties hereunder. No provision of this Agreement shall require authority granted the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf Agreement. Each former shareholder of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by Company shall promptly provide written notice to the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance change of doubt, any change to the nature address of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch shareholder.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting Through signature on this Agreement and/or approval of this Agreement, each of the Shareholders hereby appoints Xxxxxxxx X. Xxxxxxx, Xx. as such Shareholder’s exclusive agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (iiRepresentative”) to give and receive notices and communicationscommunications with respect to the provisions of this Agreement, (iii) and to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect settlements or compromises of matters arising under this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take any and all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all to be taken on behalf of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ RepresentativeShareholders under this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties is irrevocable and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representativecoupled with an interest. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders in respect of the Selling Partiesmatters under this Agreement. The Shareholders agree that a decision, except for notices related to any action for which the Selling Parties’ act, consent is required under the terms or instruction of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ RepresentativeRepresentative shall constitute a decision of all Shareholders, including and shall be final, binding and conclusive upon each Shareholder, and Parent may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of all Shareholders. Parent and its Affiliates shall not be liable in electronic formany way to the Shareholders based on any act or omission of the Shareholders’ Representative relating to this Agreement.
(b) The Shareholders’ Representative shall not be liable to the Shareholders only for his proven bad faith, willful misconduct, or gross negligence, as determined in light of all the circumstances, including the time and facilities available to him in the ordinary conduct of business. In determining the occurrence of any act done event or omitted hereunder contingency, the Shareholders’ Representative may request from any of the Shareholders or any other Person such reasonable additional evidence as the Shareholders’ Representative while acting in good faith and without negligence and his sole discretion may deem necessary to determine any act done or omitted pursuant fact relating to the advice of counsel shall be conclusive evidence occurrence of such good faith event or contingency, and absence may at any time inquire of negligenceand consult with others, including any of the Shareholders, and may obtain legal advice, and the Shareholders’ Representative shall not be liable to any Shareholder for any damages resulting from his delay in acting hereunder pending his receipt and examination of additional evidence, counsel or advice requested by him.
(c) The Shareholders’ Representative is authorized, in his sole discretion, to comply with final, nonappealable orders issued or process entered by any court of competent jurisdiction with respect to the Holdback Merger Consideration. The Selling Parties shall severally (and not jointly), according If any portion of the Holdback Merger Consideration is disbursed to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against is at any losstime attached, liability garnished or expense incurred without gross negligence levied upon under any court order, or bad faith on in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, writ, judgment or decree shall be made or entered by any court affecting such property or any part of thereof, then and in any such event, the Shareholders’ Representative is authorized, in his sole discretion, but in good faith, to rely upon and arising out of comply with any such order, writ, judgment or in connection with decree which he is advised by legal counsel selected by him is binding upon it without the acceptance need for appeal or administration of his duties hereunder. No provision of this Agreement shall require other action; and if the Shareholders’ Representative complies with any such order, writ, judgment or decree, he shall not be liable to expend any Shareholder or risk its own funds to any other Person by reason of such compliance even though such order, writ, judgment or otherwise incur any financial liability in the exercise decree may be subsequently reversed, modified, annulled, set aside or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partiesvacated. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall have responsibility for withholding Taxes, and with respect to any action taken certifications and governmental reporting that may be required under any laws or regulations that may be applicable to the distribution of payments to the Shareholders by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithunder this Agreement.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, In no event shall the Shareholders’ Representative be liable to any Shareholder for incidental, indirect, special, consequential or punitive damages.
(e) The Shareholders’ Representative shall only be entitled to reimbursement for expenses (including attorneys’ fees) that are incurred by Shareholders’ Representative in connection with his performance hereunder. Such expenses shall be deducted from any Holdback Merger Consideration that is distributed to the Shareholders’ Representative for further distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders. If the aggregate amount of such expenses exceeds the Holdback Merger Consideration distributed to the Shareholders’ Representative for the benefit of the Shareholders, each Shareholder shall be liable for its pro rata share (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) of such excess expenses (including attorneys’ fees).
(f) In the event that the Shareholders pay Parent and/or Shareholders’ Representative any amounts pursuant to this Agreement, such Shareholders shall be entitled to reimbursement for the amount of any such payments out of (and any such amounts shall be deducted by the Shareholders’ Representative from) any future Holdback Merger Consideration that is distributed to the Shareholders’ Representative for future distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders.
(g) If the Shareholders’ Representative resigns (by giving at least sixty (60) days’ written notice of such resignation to Parent) or dies or becomes incapable of continuing to act as the Shareholders’ Representative for any reason, a successor Shareholders’ Representative (who shall either be a Shareholder or another Person reasonably acceptable to Parent) shall be appointed in writing by a majority in interest of the Shareholders (which for purposes of this Agreement shall be based on their respective portions of the Company Shares Outstanding immediately prior to the Closing Date), such appointment to become effective upon the delivery of executed counterparts of such writing to Parent, together with an acknowledgement signed by the successor Shareholders’ Representative named in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all provisions of this Agreement applicable to the Shareholders’ Representative. Pending the election of a successor Shareholders’ Representative, the Shareholder that has the largest aggregate stake in the Total Merger Consideration immediately following the Effective Time (excluding any former Shareholders’ Representative) shall act as the interim Shareholders’ Representative. Failing such appointment, Parent or any Shareholder may apply to a court of competent jurisdiction for the appointment of a successor Shareholders’ Representative.
(h) A majority in interest of the Shareholders (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) shall have the power right at any time during the term of this Agreement to remove the then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative (who shall either be a Shareholder or authority another Person reasonably acceptable to act Parent); provided, however, that such removal of the then-acting Shareholders’ Representative shall not be effective until the delivery to Parent of executed counterparts of a writing signed by a majority in interest of the Shareholders with respect to matters pertaining such removal and appointment, together with an acknowledgement signed by a successor Shareholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Selling Parties Shareholders’ Representative.
(i) Each interim and successor Shareholders’ Representative shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term Shareholders’ Representative as a group and not matters pertaining used herein shall be deemed to an individual Selling Party include any interim or successor Shareholders’ Representative.
(for example but not j) Any notices given by way Parent while there is no Shareholders’ Representative shall be sufficiently given if given to the Shareholder with the largest stake in the Holdback Merger Consideration immediately following the Effective Time (excluding the former Shareholders’ Representative). A copy of limitation, an action against an individual Selling Party for all such notices shall be delivered to the successor Shareholders’ Representative upon his, her or its individual breach of a covenant in this Agreement)appointment and he, and she or it shall have five (5) days thereafter to take such actions as may be required under the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision terms of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to connection with any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch notice.
Appears in 1 contract
Shareholders’ Representative. 27.1 In order to efficiently administer the Transactions, each of the Holders, by executing the Letter of Transmittal, shall irrevocably appoint and designate, effective as at Completion, Rxxxx Xxxxxxxx (Shareholders’ Representative) for the purpose of:
(a) The Selling Parties, taking all actions necessary or desirable to exercise the rights and fulfill the obligations of the Holders with respect to the Transactions as contemplated by adopting this Agreement;
(b) settling or agreeing any dispute or claim arising out of or related to this Agreement and each Transaction Document and giving any waivers, consents or other approvals required to be given by the transactions contemplated herebyCompany or the Holders (in whatever capacity, hereby irrevocably whether as Holders or otherwise) pursuant to this Agreement and each Transaction Document; and
(c) taking all actions and exercising all rights of the Holders pursuant to this Agreement and each Transaction Document.
27.2 The Holders may from time to time appoint and constitute K Laser as such other person to be the Shareholders’ Representative provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by such Holders who would have been, as at immediately prior to Completion, sufficient to provide Company Shareholder Approval.
27.3 In connection with the performance of its obligations under any Transaction Document, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Holders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as such Shareholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services under any Transaction Document (collectively, the Holder Costs). Neither the Buyer not the Company shall have any liability in respect of any Holder Costs incurred by the Shareholders’ Representative or any Holder pursuant to this clause 27.3.
27.4 Each of the Holders irrevocably:
(a) undertakes to the Buyer that the Shareholders’ Representative has and shall retain the authority to bind it in relation to each matter referred to in clause 27.1 (Relevant Matter);
(b) agrees that the Buyer shall be entitled to rely on any Notice or communication in writing provided by the Shareholders’ Representative in relation to any Relevant Matter as binding on it; and
(c) agrees that any Notice or communication in writing by the Shareholders’ Representative to the Buyer in relation to any Relevant Matter shall be deemed (unless the context requires otherwise) to be provided by the Shareholders’ Representative as agent for all of the Holders.
27.5 From and after Completion, the Buyer shall be entitled to rely conclusively on such decisions and actions taken by the Shareholders’ Representative on behalf of the Selling PartiesHolders and all actions, with the authority (i) to perform the obligations decisions and instructions of the Shareholders’ Representative set forth in this Agreement shall be final, conclusive and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of binding upon the Shareholders’ Representative for the accomplishment of. From and after Completion, any a decision, act, consent or all instruction of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic forman amendment, extension or waiver of this Agreement shall constitute a decision of the Holders and shall be final, binding and conclusive upon the Holders.
27.6 Each of the parties agrees (bi) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as that the Shareholders’ Representative while acting shall, save in good faith and without negligence and any act done or omitted pursuant the case of fraud by the Shareholders’ Representative, have no personal liability whatsoever to the advice Buyer or any of counsel shall be conclusive evidence the Holders in relation to the exercise of such good faith the powers and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify authorities conferred on the Shareholders’ Representative pursuant to this clause and hold it harmless against any loss(ii) the Buyer shall, save in the case of fraud by the Buyer, have no liability or expense incurred without gross negligence or bad faith on the part of whatsoever to the Shareholders’ Representative or the Holders in relation to the exercise of the powers and authorities conferred on the Shareholders’ Representative pursuant to this clause 27. Each of the Holders shall indemnify and hold the Shareholders’ Representative harmless from any and all liabilities, actions, proceedings, claims, costs, demands, damages and expenses (including legal fees) incurred or threatened arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative relating to expend or risk its own funds or otherwise incur any financial liability in resulting from the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers and authorities conferred on the Shareholders’ Representative herein pursuant to this clause 27 or this Agreement or its otherwise acting in good faith and in the Option Agreement shall not authorize or empower exercise of reasonable judgment, save in the case of fraud by the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Samples: Merger Agreement (Slinger Bag Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Majority Shareholder is hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative as agent and attorney-in-fact of the Company Shareholders. The Shareholders’ Representative shall have the authority, for and on behalf of the Selling PartiesCompany Shareholders (except for such Company Shareholders, with if any, who have perfected their dissenters’ rights under the authority (i) WBCA), to perform the obligations take such actions and exercise such discretion as are required of the Shareholders’ Representative set forth in pursuant to Article III, Section 7.12 and Section 7.15, and Article IX of this Agreement and the Option Agreement, the Escrow Agreement, and any related document or instrument, and any such actions shall be binding on each Company Shareholder, including the following:
(iia) to give and receive communications and notices and communications, on behalf of the Company Shareholders;
(iiib) to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to Claims against Company Shareholders;
(c) to negotiate, agree to, enter into settlements and provide amendments compromises of, and supplements comply with orders and awards of courts with respect to and waivers in respect of any Claims or disputes related to this Agreement or the Escrow Agreement;
(d) to receive on behalf of the Company Shareholders payments due and owing pursuant to this Agreement or the Option Escrow Agreement and acknowledge receipt thereof;
(e) to amend, supplement or change this Agreement or the Escrow Agreement, or waive any provision hereof or thereof; provided, however, that the Shareholders’ Representative has obtained the prior written consent of each of the Principal Shareholders;
(ivf) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, receive service of process on behalf of the Company Shareholders in connection withwith any Claims under this Agreement, and the Escrow Agreement or any related document or instrument; and
(g) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, to accomplish any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond All such actions shall be required of the Shareholders’ Representative. Notices or communications deemed to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of be facts ascertainable outside this Agreement or applicable lawand shall be binding on the Company Shareholders as a matter of contract Law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Company Shareholders for any act done or omitted hereunder to be taken as the Shareholders’ Representative while acting in good faith except expressly as set forth herein. By the Company AGREEMENT AND PLAN OF MERGER 58 Shareholders’ approval of this Agreement, each Company Shareholder shall have and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith deemed to have agreed that the Company Shareholders shall indemnify and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative and hold it harmless against any lossits partners, liability or expense incurred without gross negligence or bad faith on the part shareholders, Affiliates, directors, officers, fiduciaries, employees and agents and each of the Shareholders’ partners, shareholders, Affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each a “Representative Indemnified Party”) from and against all Losses incurred or suffered by the Representative Indemnified Parties as a result of, or arising out of of, or in connection with the acceptance relating to any and all actions taken or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative omitted to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action be taken by the Shareholders’ Representative based pursuant to this Section 9.11, or in connection with the incurrence, payment, discharge or settlement of any of the obligations of the Company Shareholders, except for any such Losses that arise on such reliance account of the Shareholders’ Representative’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final adjudication. None of the Representative Indemnified Parties shall be deemed conclusively liable to have been taken any Company Shareholder in good faith.
(c) Notwithstanding the foregoing provisions respect of such arrangements or actions or omissions in this ARTICLE VIIIconnection therewith, or any provision except to the contrary set forth in this Agreement extent that such acts or the Option Agreementomissions constitute gross negligence or willful misconduct. A decision, act, consent or instruction of the Shareholders’ Representative shall only have constitute a decision for all of the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Company Shareholders hereunder, and the powers conferred on shall be final, binding and conclusive upon each of such Company Shareholders and Purchaser and Merger Sub may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of such Company Shareholders. Purchaser and Merger Sub are hereby relieved and held harmless from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to reimbursement from the Company Shareholders of any and all fees, expenses and costs incurred in the performance of such Shareholders’ Representative’s duties hereunder. Notwithstanding anything to the contrary herein, no Company Shareholder shall be obligated to reimburse or indemnify or hold harmless the Shareholders’ Representative in an aggregate amount in excess of such Company Shareholder’s Percentage Interest of the Post-Closing Expenses Fund, the Adjustment Escrow Amount or the Indemnity Escrow Amount, or an individual amount in excess of such Company Shareholder’s Percentage Interest of the amount for which reimbursement or indemnification is sought. The Shareholders’ Representative shall have the right to instruct Purchaser and the Exchange Agent to offset any of the Aggregate Merger Consideration in satisfaction of any of the foregoing obligations of the Company Shareholders to the Shareholders’ Representative. If the Majority Shareholder becomes unable to serve as Shareholders’ Representative, such other Person or Persons may be designated by a majority of the individuals who were the directors of the Company immediately prior to the Closing, and such Person or Persons shall succeed as the Shareholders’ Representative. Each successor Shareholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term “Shareholders’ Representative” as used herein and in the Option Escrow Agreement shall not authorize be deemed to include any interim or empower the successor Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
Shareholders’ Representative. For purposes of payment due to the Shareholders and notice requirements under this Agreement, the Shareholders hereby appoint Carl Xxxxxxx, Xx. (axxe "Shareholders' Representative") The Selling Partiesto serve as their agent and attorney-in-fact with full power and authority (including power of substitution), by adopting this Agreement in the name of and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations each of the Shareholders’ Representative set forth , or in this Agreement and the Option Agreementtheir own names as Shareholders' Representative, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary required or appropriate in permitted under this Agreement, including the judgment giving and receiving of all service of process, reports, notices and consents and the signing of all certificates, notices, instructions and other documents and the making of all determinations thereunder. The authority conferred by this Section 8.7 shall be deemed an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to termination by any of the Shareholders’ Representative for the accomplishment of, any or all by operation of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed law, whether by the holders death or incapacity of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required any of the Shareholders’ Representative, or the occurrence of any other event. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each If any of the Selling PartiesShareholders should die or become incapacitated, except for notices related to or if any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativeother such event should occur, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding as valid as if such death or incapacity, termination or other event had not occurred regardless or whether or not the foregoing provisions in this ARTICLE VIIIShareholders' Representative, the Surviving Company, Buyer or any provision of the Shareholders shall have received notice of such death, incapacity, termination or other event. Any notice given to the contrary set forth in Shareholders' Representative under this Agreement shall constitute effective notice to the Shareholders, and Buyer may rely on any notice, consent, election or other communication received from the Shareholders' Representative as if such notice, consent, election or other communication had been received from each of the Shareholders. Buyer shall not be liable to the Shareholders for any action taken or omitted to be taken by the Shareholders' Representative under this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesconnection therewith.
Appears in 1 contract
Shareholders’ Representative. (aA) The Selling PartiesFor purposes of this Agreement, by adopting this Agreement and Seller hereby consents to the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointment of Xxxx Xxxxx to act as the Shareholders’ ' Representative and as agent and attorney-in-fact for and on behalf of Seller, and the Selling Partiestaking by the Shareholders' Representative of any and all actions and the making of any decisions required or permitted to be taken by Seller under this Agreement, with including without limitation, the authority exercise of the power to (i) authorize delivery to perform the obligations any Indemnitee of the Shareholders’ Representative set forth Escrow Shares in this Agreement and the Option Agreementsatisfaction of any Damages or Claimed Amounts, (ii) agree to give negotiate, enter into settlements and receive notices and communicationscompromises with respect to such Damages or Claimed Amounts, (iii) pursuant to agree tothe terms of the Purchase Agreement, negotiatemake and deliver to the Escrow Agent, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreementtogether with Purchaser, a Positive Determination or a Negative Determination, (iv) to retain legal counsel, accountants, consultants and other expertsresolve any claims or disputes hereunder, and incur any other reasonable expenses, in connection with, and to (v) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or of the foregoing and all of the foregoingother terms, conditions and limitations contained in this Agreement. K Laser As evidenced by the execution of this Agreement by the Shareholders' Representative, the Shareholders' Representative hereby accepts its such appointment as agent and attorney-in-fact to act on behalf of Seller with respect to the Shareholders’ Representativematters contemplated by this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Seller from time to time upon not less than ten (10) days’ ' prior written notice to all of Purchaser and the Selling Parties and to Parent and PurchaserEscrow Agent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable receive no compensation for any act done services. A decision, act, consent or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ ' Representative and arising out shall constitute a decision of or in connection with the acceptance or administration Seller for whom shares of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative Purchaser Common Stock otherwise issuable to expend or risk its own funds or otherwise incur any financial liability Seller are deposited in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements Escrow Account and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithfinal, binding and conclusive upon Seller.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Imageware Systems Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting By executing this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, the Shareholders shall have appointed Xxxxxx X. Xxxxxxx (iithe "Shareholders' Representative") as their agent and attorney in fact to give and receive notices and communications, (iii) to appoint the Escrow Agent, to execute the Escrow Agreement, to authorize payment to the Purchaser of cash from the applicable Escrow Fund in satisfaction of claims by the Purchaser, to object to such payments, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (a) necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing, or (b) specifically mandated by the terms of this Agreement. K Laser hereby accepts its appointment as Any vacancy in the position of Shareholders’ Representative. Such agency ' Representative may be changed filled by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserEscrow Funds. No bond shall be required of the Shareholders’ Representative' Representative and the Shareholders' Representative shall not receive compensation for its services. Notices or other communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amounts were was contributed to the advice of counsel Escrow Funds shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding ' Representative. After all claims for Losses by the foregoing provisions in this ARTICLE VIII, or any provision to the contrary Purchaser set forth in this Agreement Claim Notices delivered to the Escrow Agent and the Shareholders' Representative has been satisfied, or the Option Agreementreserved against, the Shareholders’ ' Representative, with the consent of the majority in interest in the Escrow Funds, may recover from the Escrow Fund on the Release Date (prior to the distribution of the Escrow Funds to the Shareholders pursuant to Section 7.6) payments not yet paid for any expenses incurred in connection with the Shareholders' Representative's representation hereby. A decision, act, consent or instruction of the Shareholders' Representative shall only have constitute a decision of the power Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and the Purchaser may rely upon any such decision, act, consent or authority instruction of the Shareholders' Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and the Purchaser are hereby relieved from any liability to act any person for any acts done by them in accordance with respect to matters pertaining such decision, act, consent or instruction of the Shareholders' Representative. Subject to the Selling Parties as a group and not matters pertaining to an individual Selling Party (Purchaser's prior claims for example but not by way of limitationindemnification against the Escrow Funds, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ ' Representative herein shall be entitled to receive payment for its reasonable and in the Option Agreement shall not authorize or empower documented expenses therefrom, prior to any payments to the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Scientific Technologies Inc)
Shareholders’ Representative. (aA) The Selling PartiesShareholders hereby appoint the Shareholders’ Representative by execution of this Agreement. For so long as the Shareholders are entitled to exercise any rights or are subject to any obligations under this Agreement, by adopting the Shareholders hereby agree that the Shareholders’ Representative shall be irrevocably and exclusively authorized and empowered, with full power of substitution, to take all actions and make all decisions and determinations on behalf of the Shareholders in respect of this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as including the Shareholders’ Representative for and Reclassification, including such authorization to take all actions on behalf of the Selling PartiesShareholders in connection with any actions, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementinitiate, (ii) to give and receive notices and communicationsprosecute, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsdefend and/or settle such actions, and incur any other reasonable expenses, in connection with, and to take all actions necessary and sign all documents necessary, convenient or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, advisable to accomplish any or all of the foregoing. K Laser hereby accepts its appointment as Unless otherwise provided in this Agreement, no Shareholder shall be permitted to take any such actions without the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required approval of the Shareholders’ Representative. Notices This authority shall be deemed coupled with an interest and shall survive the death, incapacity, disability, termination, liquidation, dissolution or communications any other event affecting any Shareholder.
(B) In addition to or from the foregoing, the rights of the Shareholders’ Representative to Parent shall constitute notice to or from each under this Agreement are not otherwise transferable; provided that (i) in the event of the Selling Partiesdeath, except for notices related to any action for which the Selling Parties’ consent is required under the terms incapacity or resignation of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Xxxxxxxx Xxxxxxxx as the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative Xxxx Xxxxxxxxx shall not be liable for any act done or omitted hereunder automatically designated as the Shareholders’ Representative while acting in good faith and without negligence and any act done if he is serving as a director or omitted pursuant to officer of the advice of counsel shall be conclusive evidence of Company at such good faith and absence of negligence. The Selling Parties shall severally time, (and not jointly), according to each Selling Parties’ pro-rata interest ii) in the event (a) that Xxxx Xxxxxxxxx is not serving as a director or officer of the Company at the time of the death, incapacity or resignation of Xxxxxxxx Xxxxxxxx, or (b) of the death, incapacity or resignation of Xxxx Xxxxxxxxx or any other Person acting as the Shareholders’ Representative, the Shareholders holding a majority of the issued and outstanding shares of Everest, indemnify Class A Common Stock then held by the Shareholders shall select a new representative to replace the Shareholders’ Representative (which new representative shall be a member of, or controlled by, the Xxxxxxxx / Xxxxxxxxx Family) and hold it harmless against (iii) the Shareholders holding a majority of the issued and outstanding shares of Class A Common Stock then held by the Shareholders shall at any losstime be entitled to remove, liability and in such case, replace, the Shareholders’ Representative (which new representative shall be a member of, or expense incurred without gross negligence or bad faith on controlled by, the part Xxxxxxxx / Xxxxxxxxx Family). Notwithstanding anything to the contrary herein, the method of designation of the Shareholders’ Representative as set forth in this Section 8.11(B) may be modified by Shareholders holding a majority of the issued and arising out outstanding shares of or in connection with Class A Common Stock then held by the acceptance or administration Shareholders upon written notice of his duties hereunder. No provision such modification by such holders to the Company.
(C) By execution of this Agreement Agreement, each Shareholder agrees that the Company shall require the Shareholders’ Representative be entitled to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement rely on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on behalf of the Shareholders, and that each such reliance action shall be deemed conclusively to have been binding on each Shareholder as fully as if such Shareholder had taken such action. Each Shareholder ratifies and confirms every action taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, such Shareholder’s name by the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in under this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Reclassification Agreement (MSC Industrial Direct Co Inc)
Shareholders’ Representative. (a) The Selling PartiesShareholders, by adopting entering into this Agreement and the transactions contemplated herebyTransactions, hereby irrevocably appoint Xxxx Xxxxxxxxx (the "Shareholders' Representative") as their agent and constitute K Laser as attorney-in-fact for purposes of this Agreement, and consent to the taking by the Shareholders’ ' Representative for of any and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) be taken by the Seller or Shareholders pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsEBITDA Adjustment Guidelines attached hereto as Exhibit 26, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Company Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser , and Xxxx Xxxxxxxxx hereby accepts its his appointment as the Shareholders’ Representative' Representative for purposes of this Section 10.19. Such agency may Purchaser shall be changed entitled to deal exclusively with the Shareholders' Representative on all matters relating to this Section 10.19, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the holders Shareholders' Representative, and on any other action taken or purported to be taken on behalf of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of any Shareholder by the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ ' Representative, including in electronic formas fully binding upon such Shareholder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: LLC Membership Interest Purchase Agreement (Sizzler International Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Xxxxxx Xxxxxx is hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative true and lawful representative, proxy, agent and attorney-in-fact (the “Shareholders’ Representative”) for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Selling Parties, Shareholders in connection with or relating to the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Transaction Documents and the Option AgreementContemplated Transactions, (ii) including, without limitation, to give and receive notices and communications, (iii) to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, receive and deliver amounts comprising the Purchase Consideration, to authorize delivery of cash from each of the Escrow Accounts, to object to or accept any claims against or on behalf of the Shareholders pursuant to Article IX, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the judgment sole opinion of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties at any time and from time to time by the action of Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Closing, and shall become effective upon not less than ten thirty (1030) days’ days prior written notice to all of the Selling Parties and to Parent and PurchaserFSAC. No bond shall be required of Any change in the Shareholders’ RepresentativeRepresentative shall become effective only upon delivery of written notice of such change to FSAC. Notices The Shareholders’ Representative shall not receive compensation for his or her services. Notices, deliveries or communications to or from the Shareholders’ Representative by or to Parent any of the parties to the Transaction Documents shall constitute notice notices, deliveries or communications to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in his capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegross negligence or willful misconduct on his or her part. The Selling Parties Founders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes (excluding any taxes payable by the Shareholders’ Representative in respect of payments to him in connection with his acting as Shareholders’ Representative), fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense incurred without nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (“Damages”) that may be sustained or suffered by the Shareholders’ Representative in connection with the administration of its duties hereunder, except where such Damages arise from or are the result of the Shareholders’ Representative’s gross negligence or bad faith on willful misconduct.
(c) Any decision, act, consent or instruction taken or given by the part Shareholders’ Representative pursuant to this Agreement shall be and constitute a decision, act, consent or instruction of the Shareholders and shall be final, binding and conclusive upon the Shareholders. The Escrow Agent and FSAC may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of the Shareholders and arising out shall have no duty to inquire as to the acts and omissions of the Shareholders’ Representative. The Escrow Agent and FSAC are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or in connection with instruction of the acceptance or administration of his duties hereunder. No provision of this Agreement shall require Shareholders’ Representative.
(d) Notices given to the Shareholders’ Representative in accordance with Section 11.2 shall constitute notice to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges Shareholders for all purposes under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(ce) Notwithstanding This Section 2.5 shall survive the foregoing provisions in this ARTICLE VIII, termination or expiration of the Agreement or any provision to the contrary set forth in this Agreement one or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature more of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEscrow Agreements.
Appears in 1 contract
Samples: Stock Purchase Agreement (Federal Services Acquisition CORP)
Shareholders’ Representative. (a) The Selling PartiesCompany hereby designates Kaye, by adopting this Agreement Xxholer, Fierman, Hays & Xandler, LLP (the "Shareholders' Representative"), as the representative of the shareholders of the Company. The Shareholders' Representative shall have, among others, the following powers and duties: (i) to take such actions and to incur such costs and expenses as the Shareholders' Representative in its sole discretion deems necessary or advisable to safeguard the interests of the shareholders in the [Escrow Accounts], including, but not limited to, contesting any claim for Losses and commencing or defending litigation and settling any such claim or litigation; (ii) to employ accountants, attorneys and such other agents as the Shareholders' Representative may deem advisable and to pay reasonable compensation for such services; (iii) to maintain a register of the shareholders; and (iv) to take all actions which the Shareholders' Representative deems necessary or advisable in order to carry out the foregoing and the consummation and completion of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative may resign at any time at its sole and absolute discretion. The shareholders may, at any time, by a majority vote (one vote for each Share held by a shareholder at the Effective Time and assuming all Options outstanding at the Effective Time shall have been exercised), remove, replace or appoint as necessary, the Shareholders' Representative.
(c) The Shareholders' Representative shall be compensated for its services on the basis of its customary fees and shall be reimbursed for out-of-pocket expenses from the Shareholders' Representative's Escrow Fund). The Shareholders' Representative shall direct the Paying Agent to pay expenses incurred by it in performing its duties under this Section 9.1 out of the Shareholders' Representative's Escrow Fund. Upon a determination by the Shareholders' Representative that it will not incur any additional expenses, the Shareholders' Representative shall direct the Paying Agent to pay any remaining balance of the Shareholders' Representative's Fund proportionally to the shareholders (other than to the holders of Dissenting Shares).
(d) The Shareholders' Representative shall not be liable to any shareholder or by reason of any error of judgment or for any act done or step taken or omitted hereunder as by the Shareholders’ ' Representative while acting or for any mistake of fact or law or anything which the Shareholders' Representative may do or refrain from doing in connection herewith, unless caused by or arising out of willful misconduct. The Shareholders' Representative shall have full and complete authorization and protection for any action taken or suffered by the Shareholders' Representative hereunder in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligenceattorneys, accountants, experts or other agents engaged by the Shareholders' Representative. The Selling Parties shall severally (shareholders agree to indemnify and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold the Shareholders’ ' Representative and hold it harmless against any lossand all liabilities, liability obligations, losses or expense incurred without gross negligence or bad faith on expenses arising from the part Shareholders' Representative's actions in its capacity as a representative of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partiesshareholders. The Shareholders’ ' Representative may may, in its sole discretion, request instructions from the shareholders at any time the Shareholders' Representative determines such instructions are necessary or advisable prior to the execution of any act or decision and shall have full and complete protection for any action taken in good faith rely conclusively in reliance upon the information, reports, statements and opinions prepared or presented instructions received by counsel or other professionals retained by it, and any action taken a majority of shareholders responding to such request. It is a condition to the agreement by the Shareholders’ ' Representative based on to act in such reliance shall be deemed conclusively to have been taken capacity that a majority of the shareholders confirm, in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIletter of transmittal or other similar document, or any provision their agreement to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties9.1.
Appears in 1 contract
Samples: Merger Agreement (Glasstech Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to efficiently administer the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority including (i) the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) the waiver of any condition to perform the obligations of the Company and the Company Shareholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Shareholders’ , by the approval and adoption of this Agreement, shall designate RH Investments 2001 LLC as their representative (the "Shareholders' Representative"). The parties acknowledge that the Company and the Shareholders' Representative shall, prior to the Closing, direct by joint written notice(s) to the Buyer and the Exchange Agent that, on the Closing Date (i) a portion of the Preliminary Merger Consideration, not to exceed an amount to be disclosed in the Information Statement (as defined in Section 4.3) (the "Shareholders' Representative Fund"), shall be withheld and paid directly by the Buyer to an account designated in such notice, as a fund for the fees and expenses of the Shareholders' Representative incurred in connection with this Agreement, with any balance of the Shareholders' Representative Fund not incurred for such purposes to be returned to the Company Shareholders in proportion to their interests in the Escrow Fund, and in such manner that the Shareholders' Representative and the Company may prior to the Closing agree in writing, and (ii) a portion of the Preliminary Merger Consideration, in excess of the $300,000 of such expenses to be borne by the Buyer under Section 4.8, but not to exceed an amount to be disclosed in the Information Statement, shall be paid directly by the Buyer to certain financial and professional advisors and legal counsel to the Company in amounts to be set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior such joint written notice to all of (such amounts, after deducting such $300,000 sum, the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form"Expenses").
(b) The Company Shareholders by the approval and adoption of this Agreement authorize the Shareholders’ ' Representative (i) to make all decisions relating to the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Shareholders by the terms of this Agreement.
(c) In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Shareholders holding, prior to the Closing, a majority of the Outstanding Company Shares (on an as-converted basis) are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer relating to the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or the defense or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Shareholders' Representative shall not be liable have any liability to any of the Parties or the Company Shareholders for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Company Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision .
(f) By his, her or its approval of the Merger, this Agreement, the Escrow Agreement and the Special Escrow Agreement, each Company Shareholder agrees, in addition to the foregoing, that:
(i) the Buyer shall require be entitled to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powersclaims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The other actions required or permitted to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Shareholders’ ' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative based on such reliance shall be deemed conclusively to conclusive and binding upon all of the Company Shareholders and no Company Shareholder shall have been taken any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for Fraud (as defined in good faith.Section 6.4) or willful misconduct by the Shareholders' Representative in connection with the matters described in this Section 1.10;
(ciii) Notwithstanding the foregoing provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the transactions contemplated by this ARTICLE VIIIAgreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, or the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Shareholder, and any provision to the contrary set forth references in this Agreement to a Company Shareholder or the Option AgreementCompany Shareholders shall mean and include the successors to the Company Shareholder's rights hereunder, whether pursuant to testamentary disposition, the Shareholders’ Representative shall only have the power laws of descent and distribution or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rsa Security Inc/De/)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (A) the implementation of the Agreement by the Sellers and Shareholders, by adopting this Agreement and (B) the waiver of any condition to the obligations of the Sellers or the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as (C) the Shareholders’ Representative for and on behalf settlement of any dispute with respect to the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, the Sellers and Shareholders hereby designate Xxxxx X. Xxxxx as their representative (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the "Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ ' Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form").
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and Shareholders hereby authorize the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant (A) to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or take all action necessary in connection with the acceptance or administration implementation of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Sellers and Shareholders, the waiver of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon condition to the informationobligations of the Shareholders to consummate the transactions contemplated hereby, reportsor the settlement of any dispute, statements (B) to give and opinions prepared or presented by counsel or other professionals retained by it, receive all notices required to be given under the Agreement and (C) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSellers and/or Shareholders by the terms of this Agreement.
(c) Notwithstanding In the foregoing provisions event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, Xxxxx X. Xxxxxx shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Global is given notice of it by the Sellers and Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Sellers and Shareholders, and no Seller or Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Sellers and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that Shareholders agree that:
(i) results in Global shall be able to rely conclusively on the amounts payable hereunder instructions and decisions of the Shareholders' Representative as to any Selling Party being distributed in any manner other than as actions required or permitted pursuant to this Agreement and be taken by the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement Sellers or Shareholders or the Option AgreementShareholders' Representative hereunder, and no party hereunder shall have any cause of action against Global for action taken by Global in reliance upon the instructions or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature decisions of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Shareholders' Representative;
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy virtue of the adoption of this Agreement by the Shareholders, by adopting and without further action of any Shareholder, each Shareholder shall be deemed to have acknowledged and agreed that the Shareholders’ Representative shall have full power and authority to take all actions under this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) Escrow Agreement that are to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed taken by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including retaining counsel, accountants and other agents, representatives and experts, incurring fees and expenses, asserting or pursuing any claim against Buyer, defending any claims by Buyer or any Third Party Claim, consenting to, compromising or settling any such claims, conducting negotiations with Buyer and its representatives regarding such claims, it being understood that the Shareholders’ 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. All decisions and actions by the Shareholders’ Representative (to the extent authorized by this Agreement) shall be binding upon all the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same; provided, however, that the Shareholders’ Representative shall not take any such action where (i) any single Shareholder would be held solely liable for any actual losses, out-of-pocket costs or expenses, liabilities or other damages (without such Shareholder’s prior written consent) or (ii) such action materially and adversely affects the substantive rights or obligations of one Shareholder, or group of Shareholders, without a similar proportionate effect upon the substantive rights or obligations of all the Shareholders, unless each such disproportionately affected Shareholder consents in electronic formwriting thereto.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part By virtue of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision adoption of this Agreement shall require by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance , and without further action of any of its powersShareholder, rights, duties or privileges under this Agreement each Shareholder agrees that Buyer shall be entitled to rely on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken or omission to act by the Shareholders’ Representative based Representative, on behalf of such reliance Shareholder, pursuant to Section 11.2(a), and that such action or omission shall be deemed conclusively to have been binding on each Shareholder as fully as if such Shareholder had taken in good faithsuch action or omission.
(c) Notwithstanding All of the foregoing provisions in this ARTICLE VIIIindemnities, or any provision immunities and powers granted to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative under this Agreement shall only survive the Closing Date.
(d) A majority of Xx. Xxxx and the Beneficiaries shall have the power right at any time to remove the then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative; provided, however, that neither such removal of the then acting Shareholders’ Representative nor such appointment of a successor Shareholders’ Representative shall be effective until the delivery to the Escrow Agent and Buyer of executed counterparts of a writing signed by each such Shareholder or authority to act Beneficiary with respect to matters pertaining to such removal and appointment, together with an acknowledgement signed by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the successor Shareholders’ Representative herein and appointed in such writing that he, she or it accepts the Option Agreement shall not authorize or empower the responsibility of successor Shareholders’ Representative and agrees to do or cause to perform and be done any action (including bound by amending, modifying or waiving any provision all of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to provisions of this Agreement and the Option Escrow Agreement. Each successor Shareholders’ Representative shall have all of the power, (ii) alters the consideration payable to any Selling Party pursuant to authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term “Shareholders’ Representative” shall be deemed to include any interim or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuccessor Shareholders’ Representative.
Appears in 1 contract
Samples: Share and Membership Interest Purchase Agreement (Nacco Industries Inc)
Shareholders’ Representative. (a) The Selling PartiesShareholders’ Representative shall act as the representative of the Shareholders and shall be authorized to act on behalf of such holders, and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of under this Agreement or the Selling PartiesEscrow Agreement, including, without limitation, with respect to any claims (including the authority (isettlement thereof) made by a Buyer Indemnified Party for indemnification pursuant to perform the obligations of this Article 8 and with respect to any actions to be taken by the Shareholders’ Representative set forth in this pursuant to the terms of the Escrow Agreement and (including, without limitation, the Option Agreement, exercise of the power to: (iii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with orders of courts with respect to any settlement of the Final Work Capital Amount; (ii) authorize the delivery of certain amounts in the Escrow Funds to a Buyer Indemnified Party in satisfaction of claims by a Buyer Indemnified Party; (iii) agree to, negotiate, enter into settlements and waivers in compromises of, and comply with orders of courts with respect of this Agreement and the Option Agreement, to any claims for indemnification; (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing); (v) incur and be reimbursed for any Representative Expenses, which amounts shall be payable from the Indemnity Escrow Fund in accordance with Section 8.3(c) below; (vi) reserve from the Indemnity Escrow Amount to be dispersed to the former shareholders of the Company a reasonable estimate of the expenses necessary to resolve any amounts that are the subject of or could become the subject of a dispute; (vii) amend this Agreement or execute any amendment to this Agreement pursuant to Section 7.3 hereof; and (viii) waive or extend any term of this Agreement pursuant to Section 7.4 hereof. K Laser hereby accepts its appointment as In all matters relating to this Article 8, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Shareholders. The Buyer Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Such agency .
(b) The individual serving as Shareholders’ Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties replaced from time to time by Shareholders representing at least a majority of the Indemnity Escrow Amount calculated on the basis of such Shareholders’ Pro Rata Share of the Indemnity Escrow Amount upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserthe Indemnity Escrow Agent. No bond shall be required of the Shareholders’ Representative, and Shareholders’ Representative shall receive no compensation for his services, except as may be paid by the Company (from its own funds) on or before the Effective Time or otherwise accounted for as a Company Transaction Expense. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(bc) The In performing the functions specified in this Agreement, Shareholders’ Representative shall not be liable for to any act done Shareholder in the absence of gross negligence or omitted hereunder as willful misconduct on the part of Shareholders’ Representative. Each Shareholder shall severally (based on each such Shareholder’s Pro Rata Share of the Indemnity Escrow Amount), and not jointly, indemnify and hold harmless Shareholders’ Representative while acting in good faith from and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by Shareholders’ Representative. No provision Any out of this Agreement shall require the pocket costs and expenses reasonably incurred by Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The connection with actions taken by Shareholders’ Representative may in good faith rely conclusively upon pursuant to the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by terms of this Section 8.3 (the “Representative Expenses”) will be paid to Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
from the Indemnity Escrow Amount at the time of the distribution of any remaining portion of the Indemnity Escrow Amount and the final determination of any claims for indemnity, provided that (ci) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority deliver to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Buyer and the powers conferred on the Shareholders’ Indemnity Escrow Agent a written request for payment of such Representative herein Expenses prior to such payment (which written request shall include reasonable documentation in reasonable detail supporting such Representative Expenses) and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to there is any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature remaining amount of the Indemnity Escrow Amount following full payment of all indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesclaims hereunder.
Appears in 1 contract
Samples: Arrangement Agreement (ORBCOMM Inc.)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (athe “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Selling PartiesShareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by adopting the vote of Persons which collectively owned more than fifty percent (50%) of the Company Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as including any disputes related to the Shareholders’ Representative for and Earnout Payments, in each case on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its appointment as powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties The Shareholders will indemnify, defend and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from hold harmless the Shareholders’ Representative to Parent shall constitute notice to or from each of and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith fees and without negligence and any act done or omitted pursuant to the advice expenses of counsel shall be conclusive evidence and experts and their staffs and all expense of such good faith document location, duplication and absence of negligence. The Selling Parties shall severally shipment) (and not jointly)collectively, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ “Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund, and (ii) from any Earnout Amount at such time as any such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the Expense Fund and the Earnout Amount, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Shareholders or authority to act with respect to matters pertaining to otherwise. The Shareholders acknowledge and agree that the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way foregoing indemnities will survive the resignation or removal of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in or the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative as their agent and attorney-in-fact, as their sole representative for and on behalf of the Selling PartiesShareholders and to receive and distribute cash payments, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) and otherwise in satisfaction of indemnification claims by any Indemnified Party pursuant to this Article VIII, to object to such payments, to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any Indemnified Party and any Indemnifying Party, in each case relating to and waivers in respect of this Agreement and or the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withTransactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. K Laser hereby accepts its appointment as the The Shareholders’ Representative. Such agency Representative may not be changed by removed other than with the holders consent of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserShareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for its services. Notices Other than in connection with any claim pursued by an Indemnified Party directly against a Shareholder, notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders.
(b) A decision, act, consent or instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including an amendment, extension or waiver of any provision of this Agreement pursuant to Section 9.4 (Extension; Waiver) and Section 10.10 (Amendment and Modification) and shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders, and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of the Shareholders. Purchaser is hereby relieved from any liability to any person for any acts done by it in electronic formaccordance with such decision, act, consent or instruction of the Shareholders’ Representative.
(bc) The Shareholders’ Representative shall not distribute or cause to be liable for distributed, in each case in accordance with the Distribution Schedule: (i) to each Shareholder the portion of the Adjusted Cash Consideration payable to such Shareholder in respect of such Shareholder’s Company Shares, pursuant the Distribution Schedule; and (ii) any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant other monies that may be distributed to the advice Shareholders after the Closing on account of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally their Company Shares.
(and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. d) The Shareholders’ Representative may in good faith rely conclusively and act upon any statement, report or opinion prepared by or any advice received from the informationauditors, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by professional advisors of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Representative. Absent fraud or any provision to the contrary set forth in this Agreement or the Option Agreementwillful misconduct, the Shareholders’ Representative shall only have not be responsible or held liable, in each case to any Shareholders for any loss or damage resulting from so relying or from acting in accordance with this Agreement as the power or authority Shareholders’ Representative. Each Shareholder agrees (i) to act with respect to matters pertaining to the Selling Parties as a group jointly and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), severally indemnify and the powers conferred on hold harmless the Shareholders’ Representative herein and its officers, directors and security holders from and against any and all losses, claims, damages, costs, expenses (including, without limitation, legal fees and expenses on a full indemnity basis) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Shareholders’ Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in the Option Agreement shall not authorize respect thereof) arise out of, in any way relate to, or empower result from its acting as Shareholders’ Representative hereunder and (ii) to reimburse the Shareholders’ Representative to do and its officers, directors and security holders upon demand for all legal or cause to be done any action (including by amendingother expenses, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results if any, incurred in connection with its acting as Shareholders’ Representative, other than in the amounts payable hereunder to any Selling Party being distributed case of fraud, gross negligence or willful misconduct, provided that the Shareholders’ Representative has acted in any manner other than as permitted pursuant to compliance with this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Share Purchase Agreement (Marrone Bio Innovations Inc)
Shareholders’ Representative. The rights of the Escrow Participants to receive disbursements from the Escrow Fund pursuant to the Escrow Agreement shall be subject to the right of Xxxxxxx X. Xxxxxx (athe “Shareholders’ Representative”) The Selling Parties, to take any and all actions and make any and all decisions sd-625790 required or permitted to be taken or made by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf under this Agreement or the Escrow Agreement, including the exercise of the Selling Parties, with the authority right to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, communications under Article 8 or the Escrow Agreement; (ii) authorize delivery to Parent of Parent Common Stock from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to claims for indemnification made by Parent under Article 8; (iv) agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with court orders with respect to and waivers in respect claims for indemnification made by Parent under Article 8; (v) undertake any defense of this Third-Party Claims; (vi) amend or waive the Escrow Agreement and the Option Agreement, (ivvii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as The identity of the Shareholders’ Representative may be changed, and a successor Shareholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Shareholders’ Representative. Such agency may be changed ) by Escrow Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and any such successor shall succeed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) daysShareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except be reimbursed for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence costs and expenses (including overhead expenses) incurred in such capacity from the Shareholders’ RepresentativeRepresentative Reimbursement Amount. From and after the Effective Time, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done a decision, act, consent or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithfinal, binding and conclusive upon each Escrow Participant.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
Shareholders’ Representative. (a) The Selling PartiesExcept as otherwise provided in this Agreement, any right or action that may be taken at the election of the Seller, Parent, the Shareholders or a Shareholder will be taken by adopting this Agreement a representative of the Seller, Parent, and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as Shareholders (the “Shareholders’ Representative”) on behalf thereof. The initial Shareholders’ Representative for and on behalf of the Selling Partieswill be Jxxxx Xxxxxxxx. Upon his resignation, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Seller’s capital stock as set forth on Schedule 3.2 may designate a successor Shareholders’ Representative. Notices or communications to or from the Any Shareholders’ Representative so designated must be reasonably acceptable to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formPurchaser.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Any change in the Shareholders’ Representative while acting will become effective upon notice in good faith accordance with Section 9.1. The Seller, Parent, and without negligence the Shareholders, jointly and severally, will indemnify and hold the Purchaser Indemnitees and their representatives harmless from any claim of the Seller, Parent, or any Shareholder arising out of any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify omission by the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance transactions contemplated by this Agreement.
(c) Except as otherwise provided in this Agreement, any right or administration action that may be taken at the election of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Seller, Parent, the Shareholders or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action a Shareholder will be taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding behalf thereof. The Seller, Parent, and each of the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, Shareholders hereby irrevocably appoints the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to agent and attorney-in-fact of the Selling Parties as a group Seller, Parent and not matters pertaining to an individual Selling Party (each of the Shareholders for example but not by way the purposes of limitationacting in the name and stead of the Seller, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Parent, and such Shareholder in: (a) receiving, holding and distributing the powers conferred Purchase Price and paying any associated costs and expenses of the transactions hereunder required to be paid by the Seller, Parent, or such Shareholder; (b) giving and receiving all notices permitted or required by this Agreement and acting on the Seller’s, Parent, and any Shareholder’s behalf hereunder for all purposes specified herein; (c) agreeing with the Purchaser as to any amendments to this Agreement which the Shareholders’ Representative herein may deem necessary or advisable; (d) employing legal counsel; (e) paying any legal and in the Option Agreement shall not authorize or empower any other fees and expenses incurred by the Shareholders’ Representative to do in consummating the transactions contemplated by this Agreement; (f) defending or cause to be done any action (including by amending, modifying or waiving any provision of settling claims arising under this Agreement or any Transaction Document; and (g) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which the Option Shareholders’ Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement) that (i) results , as fully as if the Seller, Parent, and/or such Shareholders were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other Parties to this Agreement, and in consideration of those interests and for the amounts payable hereunder to purpose of completing the transactions contemplated hereby, this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by the Seller, Parent, or any Selling Party being distributed in Shareholder or by operation of Law, whether by the termination of the Shareholders’ Representative or by the occurrence of any manner other than as permitted event. If any Shareholder should die or become incompetent or incapacitated, all actions taken by the Shareholders’ Representative pursuant to this Agreement and shall be as valid as if such death, incompetence, or incapacity had not occurred, regardless of whether the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement Purchaser or the Option AgreementShareholders’ Representative, or (iii) adds any of them, shall have received notice of such death, incompetence, incapacity, or other event. The Shareholders’ Representative will be promptly reimbursed by the Shareholders for all reasonable expenses, disbursements and advances incurred by the Shareholders’ Representative in such capacity upon demand. The Shareholders, severally and not jointly, agree to or results in an increase of indemnify and hold harmless the Shareholders’ Representatives for and from any Selling Party’s indemnity loss, liability, expense, charge, damages, claims or other obligations he may incur as a result of his duties hereunder or liabilities under this Agreement (includingany of his actions or inactions as such, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesexcept as may result from his willful misconduct or gross negligence.
Appears in 1 contract
Samples: Asset Purchase Agreement (Measurement Specialties Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Xxxxx is hereby appointed as the Shareholder’s and the transactions contemplated herebyFounders’ true and lawful representative, hereby irrevocably appoint proxy, agent and constitute K Laser attorney-in-fact (the “Shareholder’s Representative”) for a term that shall be continuing and indefinite and without a termination date except as the Shareholders’ Representative otherwise provided herein, to act for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholder and the Option AgreementFounders in connection with or relating to the Transaction Documents and the Contemplated Transactions, (ii) including, without limitation, to give and receive notices and communications, (iii) to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, to authorize delivery of cash from each of the Escrow Accounts, to object to or accept any claims against or on behalf of the Shareholder and/or the Founders pursuant to Article IX, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the judgment sole opinion of the Shareholders’ Shareholder’s Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as Until all amounts in each of the Shareholders’ Escrow Accounts have been fully and finally been distributed by the Escrow Agent, the Shareholder may remove and replace any Shareholder’s Representative. Such agency may be changed At such time as all amounts in each of the Escrow Accounts have been fully and finally distributed by the holders Escrow Agent, the Shareholder shall cease to have the authority to remove and replace the Shareholder’s Representative and Xxxxx shall have the authority to remove and replace any Shareholder’s Representative. Any change in the Shareholder’s Representative shall become effective only upon delivery of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice of such change to all of the Selling Parties and to Parent and PurchaserICF. No bond The Shareholder’s Representative shall be required of the Shareholders’ Representativenot receive compensation for his or her services. Notices Notices, deliveries or communications to or from the Shareholders’ Shareholder’s Representative by or to Parent any of the parties to the Transaction Documents shall constitute notice notices, deliveries or communications to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(b) The Shareholders’ Shareholder’s Representative shall not be liable for any act done or omitted hereunder in his capacity as Shareholder’s Representative in the absence of gross negligence or willful misconduct on his or her part. The Shareholder and the Founders (so long as the Shareholders’ Representative while acting in good faith Shareholder has the authority to remove and without negligence replace the Shareholder’s Representative) and any act done or omitted pursuant the Founders, but not the Shareholder (commencing at the time Xxxxx has the authority to remove and replace the advice of counsel Shareholder’s Representative) shall be conclusive evidence of such good faith protect and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Shareholder’s Representative and hold it the Shareholder’s Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) (“Damages”) of any kind or expense incurred without gross negligence nature whatsoever (whether or bad faith on the part of the Shareholders’ Representative and not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) that may be sustained or suffered by the Shareholder’s Representative in connection with the acceptance or administration of his its duties hereunder. No provision , except where such Damages arise from or are the result of this Agreement shall require the Shareholders’ Representative to expend Shareholder’s Representative’s gross negligence or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithwillful misconduct.
(c) Notwithstanding Any decision, act, consent or instruction taken or given by the foregoing provisions in Shareholder’s Representative pursuant to this ARTICLE VIIIAgreement shall be and constitute a decision, act, consent or instruction of the Shareholder and/or the Founders, as the case may be, and shall be final, binding and conclusive upon the Shareholder and the Founders. The Escrow Agent and ICF may rely upon any provision such decision, act, consent or instruction of the Shareholder’s Representative as being the decision, act, consent or instruction of the Shareholder and/or the Founders and shall have no duty to inquire as to the contrary set forth acts and omissions of the Shareholder’s Representative. The Escrow Agent and ICF are hereby relieved from any liability to any Person for any acts done by them in this Agreement accordance with such decision, act, consent or instruction of the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining Shareholder’s Representative.
(d) Notices given to the Selling Parties as a group Shareholder’s Representative in accordance with Section 11.2 shall constitute notice to the Shareholder and not matters pertaining to an individual Selling Party (the Founders for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in all purposes under this Agreement), and .
(e) This Section 2.5 shall survive the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize termination or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision expiration of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement one or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature more of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEscrow Agreements.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, Shareholders shall be represented hereunder by adopting this Agreement and the transactions contemplated hereby, H. Martin Harmless II ("Shareholders Representative"). The Shareholxxxx Xxxxesentative is hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) empowered by each Shareholder to give and receive notices and communications, (iii) to authorize delivery to Parent of Parent Common Stock or other property placed in Escrow in satisfaction of claims by Parent or Sub, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments compromises of, demand arbitration of and supplements comply with awards of arbitrators with respect to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, such claims and to take any and all actions necessary or appropriate in the judgment of the Shareholders’ Shareholders Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) In the event a Shareholder Representative shall die or resign or otherwise terminate this status as such, a successor, who shall be a Shareholder, shall be appointed by a majority-in-interest of the Shareholders. All decisions of the Shareholders Representative shall be made by a majority vote or agreement if there shall be more than two Shareholder Representatives. The Shareholders’ Shareholders Representative shall receive no compensation for his services.
(c) The Shareholders Representative shall not be liable to the Shareholders or the Company for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties shall severally (Shareholders and not jointly), according Company hereby agree to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders Representative harmless against any loss, liability, or expenses incurred by Shareholders Representative in his capacity as such, except to the extent such loss, liability or expense incurred without gross negligence or is due to bad faith or negligent conduct. The Shareholders Representative shall be entitled to reimbursement by the Shareholders, pro rata to the percentages set forth opposite the names of the Shareholders on Attachment A hereto, for attorneys fees and other out-of-pocket expenses incurred by Shareholders Representative in accordance with this Agreement.
(d) A decision by the part Shareholders Representative shall constitute a decision of all of the Shareholders and the Company, and shall be final, binding and conclusive upon each of them. Parent, Sub and the Escrow Agent may rely upon any act, decision, consent or instruction of the Shareholders Representative as being the act, decision, consent or instruction of each and all of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIParent, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Sub and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done Escrow Agent are hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed person for any acts done by them in accordance with any manner other than as permitted pursuant to this Agreement and the Option Agreementact, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement decision, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholders Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the execution of this Agreement by the Sellers, and the transactions contemplated herebywithout further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby irrevocably appoint accepts such appointment) as agent and constitute K Laser as the attorney-in-fact (“Shareholders’ Representative Representative”) for and on behalf of the Selling PartiesSellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the authority (i) name, place and stead of each Seller with respect to perform Section 2.4 and the obligations of Escrow Agreement and the taking by the Shareholders’ Representative set forth in this Agreement of any and all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of be taken by the Shareholders’ Representative for under Section 2.4 and the accomplishment of, Escrow Agreement (it being understood that the Sellers shall have no right to pursue any or all claim on behalf of any Company Indemnified Party in respect of the foregoingrights granted to Company Indemnified Parties under Section 7.1). K Laser hereby accepts its appointment as The power of attorney granted in this Section 13.1(a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ RepresentativeRepresentative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) days’ prior written notice to all including in the event of the Selling Parties death, disability or other incapacity of a Shareholders’ Representative that is an individual), and to Parent and Purchaserany such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. Notices At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or communications obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to or the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to Parent shall constitute notice to or from each expend any of the Selling Partiesamounts held in the Shareholders’ Representative Expense Fund (though, except for notices related the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any action for which costs or expenses or expend any amount in excess of amounts held in the Selling PartiesShareholders’ consent is required under Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement, any amount that the Shareholders’ RepresentativeRepresentative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, including financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in electronic formconnection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall require be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesRepresentative. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall not be liable for, and shall be indemnified by the Sellers for, any action liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively pursuant to have been taken in good faiththe terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) Notwithstanding From and after the foregoing provisions in Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have treat confidentially any nonpublic information about the power or authority to act Company (except in connection with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not performance by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein of its duties or the exercise of its rights under this Agreement).
(d) From and in after the Option Agreement shall not authorize Closing, a decision, act, consent or empower instruction of the Shareholders’ Representative to do shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or cause to be done instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed Person for any acts done by Buyer in accordance with any manner other than as permitted pursuant to this Agreement and the Option Agreementsuch decision, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Xxxxxxxxx Xxxxxxx as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (athe “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Selling PartiesShareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by adopting the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and in each case on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its appointment as powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties The Shareholders will indemnify, defend and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from hold harmless the Shareholders’ Representative to Parent shall constitute notice to or from each of and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith fees and without negligence and any act done or omitted pursuant to the advice expenses of counsel shall be conclusive evidence and experts and their staffs and all expense of such good faith document location, duplication and absence of negligence. The Selling Parties shall severally shipment) (and not jointly)collectively, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ “Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to expend be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Shareholders or authority to act with respect to matters pertaining to otherwise. The Shareholders acknowledge and agree that the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way foregoing indemnities will survive the resignation or removal of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in or the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Shareholders' Representative shall act as the exclusive representative of each Controlling Shareholder for the purpose of settling on their behalf claims made by any Buyer Indemnified Party under Section 8.1(b) or asserting on their behalf claims against Buyer under Section 8.1(c), representing them in any indemnification proceedings under Section 8.2, and representing them in connection with any other claim by any Buyer Indemnified Party. The Shareholders’ ' Representative shall also act as the exclusive representative of each Controlling Shareholder for and on behalf the purpose of instructing the Selling Parties, with Escrow Agent as to distributions from the authority (i) to perform the obligations of Escrow Fund. Each Controlling Shareholder shall be bound by any action taken by the Shareholders’ ' Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formon their behalf.
(b) The Buyer Indemnified Parties and the Escrow Agent shall be entitled to rely exclusively upon any notice or communication given by the Shareholders’ ' Representative with respect to the Controlling Shareholders and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon such notice or communication. The Buyer Indemnified Parties and the Escrow Agent shall be entitled to disregard any notice or communication from any Controlling Shareholder with respect to the matters described in this Section 8.4 unless given or made through the Shareholders' Representative.
(c) In the event of the inability of the Shareholders' Representative to perform its functions hereunder, a majority of the Controlling Shareholders, voting in proportion to the number of Company Shares owned by them on the Closing Date, shall appoint a substitute Shareholders' Representative.
(d) The Shareholders' Representative shall not be liable to any Controlling Shareholder for any act done action taken or omitted hereunder to be taken by it as the Shareholders’ ' Representative while acting unless it is proved by clear and convincing evidence that its action or failure to act was undertaken with willful or deliberate intent to cause injury to the Controlling Shareholders. Without limiting the foregoing, the Shareholders' Representative shall not be liable to any Controlling Shareholder for any action taken or omitted to be taken by it as the Shareholders' Representative in good faith and without negligence and in reliance upon any act done advice, opinion, report or omitted pursuant to the advice of counsel other information prepared by legal counsel, public accountants or other professionals. The Shareholders' Representative shall be conclusive evidence indemnified and held harmless out of the Escrow Fund prior to any such distribution being made, from and against any Loss or expense of any nature incurred by the Shareholders' Representative arising out of its duties as Shareholders' Representative, including reasonable legal fees and other costs and expenses of defending against any claim arising out of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)duties, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability unless such Loss or expense incurred without gross negligence shall be caused by the willful or bad faith on the part deliberate misconduct of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Samples: Merger Agreement (Harland John H Co)
Shareholders’ Representative. (a) In order to administer efficiently the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Metzxxx xx the Surviving Corporation pursuant to Section 5.3 hereof, the Shareholders hereby designate Lloyx X. Xxxxxxx xx their representative (the "SHAREHOLDERS' REPRESENTATIVE").
(b) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser as authorize the Shareholders’ ' Representative for and on behalf of the Selling Parties, with the authority (i) to perform upon the obligations receipt of instructions of the Shareholders’ Representative set forth Shareholders representing a majority of Pro Rata Percentages, to take all action necessary in this Agreement and connection with the Option Agreementdefense and/or settlement of any claims for which the Shareholders may be required to indemnify Metzxxx xxx/or the Surviving Corporation pursuant to Section 5.3 hereof, (ii) to give and receive all notices required to be given and communicationstake all action required or permitted to be taken under this Agreement and the other agreements contemplated hereby to which all the Shareholders are parties, including the Escrow Agreement ("OTHER AGREEMENTS"), and (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect be taken by or on behalf of the Shareholders by the terms of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithOther Agreements.
(c) Notwithstanding Upon receiving notice of the foregoing provisions death or incapacity of the Shareholders' Representative, the Shareholders (who shall be deemed to include any successor in this ARTICLE VIIIinterest to any Shareholder, including a successor in interest to the stock holdings of the Shareholders' Representative) shall by majority vote (based on their Pro Rata Percentages) appoint a successor to fill the vacancy. The Shareholders may by such majority vote remove the Shareholders' Representative with or without cause and appoint a successor, provided that notice thereof is given by the new Shareholders' Representative to each of the other Parties hereto (including Metzxxx) xxd to the Escrow Agent. The Shareholders' Representative may resign if, and only if, he is simultaneously replaced with a substitute Shareholders' Representative, or upon the termination of the Escrow Agreement pursuant to its terms. (d) By their execution of this Agreement, the Shareholders agree that:
(i) Notwithstanding any other provision herein to the contrary set forth contrary, Metzxxx xxxll be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to the settlement of any claims for indemnification by Metzxxx xx the Surviving Corporation pursuant to Section 5.3 hereof or any other actions required to be taken by the Shareholders' Representative hereunder, and no Party hereunder shall have any cause of action against Metzxxx xx the Surviving Corporation for any action taken by Metzxxx xx the Surviving Corporation in reliance upon the instructions or decisions of the Shareholders' Representative.
(ii) all actions, decisions and instructions of the Shareholders' Representative, including the defense or settlement of any claims for which the Shareholders may be required to indemnify Metzxxx and/or the Surviving Corporation pursuant to Section 5.3 hereof, shall be conclusive and binding upon all of the Shareholders, and no Shareholder shall have any right to object, dissent, protest or otherwise contest the same or have any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for willful misconduct (which shall include fraud), gross negligence or breach by the Shareholders' Representative of his obligations as such Representative; (iii) the provisions of this Subsection 2.12 are independent and severable, are irrevocable and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement; (iv) remedies available at law for any breach of the provisions of this Subsection 2.12 are inadequate; therefore, Metzxxx, the Surviving Corporation and the Shareholders' Representative shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Metzxxx, xxe Surviving Corporation or the Shareholders' Representative brings an action to enforce the provisions of this Subsection 2.12; and (v) the provisions of this Subsection 2.12 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Shareholder, and any references in this Agreement to a Shareholder or the Option AgreementShareholders shall mean and include the successors to the Shareholders' rights hereunder, whether pursuant to assignment, testamentary disposition, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way laws of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)descent, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize distribution or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Samples: Merger Agreement (Metzler Group Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to administer efficiently the transactions contemplated hereby, including (i) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, the Shareholders hereby designate Xxxxx Xxxxxxxx as their representative (the “Shareholders’ Representative”), in accordance with the terms of the Power of Attorney (as defined in Section 7.3(i)).
(b) Each Shareholder irrevocably appoint and constitute K Laser as agrees that such Shareholder grants the Shareholders’ Representative full power and authority to act as agent and attorney-in-fact for each Shareholder, for and on behalf of the Selling PartiesShareholders, with the authority (i) to perform take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, (ii) to give and receive all notices and communicationsrequired to be given or received by the Shareholders under this Agreement or the Escrow Agreement, (iii) to authorize delivery to Purchaser of Indemnification Escrow Consideration in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, to negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions additional action necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment foregoing or as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement and the Escrow Agreement.
(c) The agency of the Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten (10) 30 days’ prior written notice to Purchaser. In the event that the Shareholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Founders shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. The Shareholders’ Representative shall not receive compensation for his or her services. No provision of this Agreement shall restrict in any way the ability or right of the Shareholders’ Representative to voluntarily resign from such position at any time, and any such resignation shall be done without any liability to the Shareholders’ Representative.
(d) All decisions and actions by the Shareholders’ Representative, including without limitation any agreement between the Shareholders’ Representative and Purchaser relating to the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Consideration held in the Indemnification Escrow Fund, shall be binding upon all of the Selling Parties Shareholders and no Shareholder shall have the right to Parent and Purchaser. No bond object, dissent, protest or otherwise contest the same.
(e) By such Shareholder’s execution of this Agreement, each Shareholder agrees that:
(i) Purchaser shall be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to the settlement of any claims for indemnification of Purchaser pursuant to the Escrow Agreement or Article VIII below or any other actions required or permitted to be taken by the Shareholders’ Representative hereunder, and no party hereunder shall have any cause of action against Purchaser to the extent that Purchaser has relied upon the instructions or decisions of the Shareholders’ Representative. Notices ;
(ii) all actions, decisions and instructions of the Shareholders’ Representative shall be conclusive and binding upon all of the Shareholders and no Shareholder shall have any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except Shareholders for notices related to any action for which the Selling Parties’ consent is required under the terms purposes of this Agreement and the Escrow Agreement;
(iv) the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or applicable law. Each Selling Party agrees to receive correspondence from remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) as between such Shareholder and the other Shareholders, the Shareholders’ RepresentativeRepresentative shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement and every such determination made in good faith shall be conclusive and binding on the Shareholders and the Shareholders’ Representative may act on the opinion or advice of or information obtained from any solicitor, including in electronic form.attorney, banker, broker, accountant or other expert and shall not be responsible for any loss occasioned by so acting;
(bvi) The such Shareholder shall, together with all of the other Shareholders, jointly and severally indemnify the Shareholders’ Representative from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Shareholders’ Representative by Purchaser, the Company, other Shareholders, or any other person in connection with this Agreement and in suing for and recovering any sum due to the Shareholders or any of them under this Agreement;
(vii) in performing the functions specified in this Agreement and the Escrow Agreement, the Shareholders’ Representative shall not be liable for to any act done or omitted hereunder as Shareholder in the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative; and
(viii) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Shareholder, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Shareholders’ Representative and arising shall be paid out of or amounts remaining in connection with the acceptance or administration Indemnification Escrow Fund after satisfaction of his duties hereunderall claims of Purchaser against such fund. No provision of this Agreement shall require Upon application by the Shareholders’ Representative to expend or risk the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Indemnification Escrow Fund, Purchaser may in its own funds or otherwise incur any financial liability in sole and absolute discretion authorize the exercise or performance Escrow Agent to release a portion of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The the Indemnification Escrow Fund to the Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reimbursement of fees and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on prior to such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions time. Nothing in this ARTICLE VIII, or any provision to Section 1.7(f) shall limit the contrary set forth in obligations of the Shareholders under Section 1.7(e)(vi). In carrying out his functions under this Agreement or the Option Agreement, the Shareholders’ Representative shall only have be permitted, in his discretion, to solicit from each of the power Shareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any necessary or authority to appropriate act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)hereunder, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amendingeach Shareholder, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted consistent with such Shareholder’s obligations pursuant to this Agreement and the Option AgreementSection 1.7(e)(vi) above, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case shall comply with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch request.
Appears in 1 contract
Samples: Share Purchase Agreement (Sirf Technology Holdings Inc)
Shareholders’ Representative. Bradley R. Mason (asuch person and any successor or successors beinx xxx "Xxxxxxxxxers' Representative") The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the representative of the Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the authority (isettlement thereof) made by Parent or the Shareholders for indemnification pursuant to perform the obligations of the Shareholders’ Representative set forth in Article VIII or this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect Article XI of this Agreement and with respect to any actions to be taken by the Option Shareholders' Representative pursuant to the terms of the Escrow Agreement. The Shareholders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof that are within the authority granted herein. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes in good faith to be in the best interest of the Shareholders. Neither the Shareholders' Representative nor any of its directors, officers, agents or employees shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement, (iv) to retain except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Shareholder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Shareholder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results , other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the amounts payable hereunder Escrow Agreement, (a) the Shareholders' Representative is not authorized to, and shall not, accept on behalf of any Shareholder any Merger Consideration to any Selling Party being distributed which such Shareholder is entitled under this Agreement and (b) the Shareholders' Representative shall not in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Shareholder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Shareholder. In all matters relating to this Article XI, the Shareholders' Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders' Representative shall perform all of the obligations of the Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesUpon the closing of the Merger, by adopting this Agreement Xxxxxx Xxxxxx shall be constituted and appointed as agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative "SHAREHOLDERS' REPRESENTATIVE") for and on behalf of the Selling Parties, with the authority (i) to perform the obligations each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Shareholders to give and receive notices and communications, (iii) to authorize delivery to Parent of Pledged Shares in satisfaction of Claims, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to Claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the holders vote of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Partiesreceive no compensation for its services, except for notices related to any action for which payment by the Selling Parties’ consent is required under the terms Shareholders of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from expenses, including fees of counsel, reasonably incurred by the Shareholders’ Representative, including ' Representative in electronic formconnection with the performance of its duties hereunder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it such agent harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIA decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group decision of all Shareholders and not matters pertaining to an individual Selling Party (for example but not by way of limitationshall be final, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)binding and conclusive upon each Shareholder, and the powers conferred on Parent may rely upon any decision, act, consent or instruction of the Shareholders’ ' Representative herein taken in such manner as being the decision, act, consent or instruction of each and every Shareholder. The Parent is hereby relieved from any liability to any person for any acts done by them in the Option Agreement shall not authorize accordance with such decision, act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc)
Shareholders’ Representative. (a) Each of the Shareholders agrees that Xx. Xxxxxxx Xxxxxxxx is hereby designated as “Shareholders’ Representative” to represent each of the Shareholders for purposes of this Agreement, including prior to the Closing for the purposes set forth herein. All of the Shareholders agree that Xx. Xxxxxxx Xxxxxxxx may appoint a successor Shareholders’ Representative at any time, and that any such successor Shareholders’ Representative shall have all of the rights and obligations pertaining to the Shareholders’ Representative as set forth in this Agreement. The Selling PartiesShareholders’ Representative shall have the following powers and duties: (i) to take such lawful actions and to incur such costs and expenses as the Shareholders’ Representative, by adopting in its sole discretion, deems necessary or advisable to safeguard the interests of the Shareholders in this Agreement and the transactions contemplated hereby; (ii) to compromise, hereby irrevocably appoint modify, settle, waive, relinquish, exchange, liquidate or otherwise resolve the rights of the Shareholders in and constitute K Laser to any amounts that are or may be payable after the Closing by Edesa hereunder, which compromise, modification, settlement, waiver, relinquishment, exchange, liquidation or resolution may include payment to the Shareholders of cash, property or any combination thereof; (iii) to employ accountants, investment banks, appraisers, and other experts, attorneys and such other agents as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority may deem advisable; (iiv) to perform incur fees, costs and expenses relating to the obligations of the Shareholders’ Representative set forth in this Agreement performance and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect implementation of this Agreement and the Option Agreementother Transaction Documents and the transactions contemplated hereby and thereby (including costs and expenses relating to third-party paying agents, wire expenses and other costs and expenses relating to the payment of any amounts due hereunder); (ivv) to retain legal counselexecute, accountantsdeliver and perform under this Agreement and the other Transaction Documents to which the Shareholders are party; (vii) subject to Section 11.3, consultants execute and deliver any or perform under any amendment or waiver to this Agreement and the other experts, Transaction Documents; and incur any other reasonable expenses, in connection with, and (viii) to take all lawful actions necessary or appropriate in the judgment of which the Shareholders’ Representative for the accomplishment of, any deems necessary or all of advisable in order to carry out the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the The Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawserve without compensation. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Shareholders for the performance of any act done or omitted hereunder failure to act so long as the Shareholders’ Representative while acting it acted (or failed to act) in good faith within what it reasonably believed to be the scope of its authority and without negligence and any act done or omitted pursuant for a purpose which it reasonably believed to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares best interests of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part .
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and arising out of or in connection with the acceptance or administration of his duties hereunderis hereby irrevocable. No provision The provisions of this Section 6.19 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest, are given primarily for a business or commercial purpose, shall survive the death, disability, incapacity, bankruptcy, dissolution or liquidation of each Shareholder, and are granted by each of the Shareholders to the Shareholders’ Representative, and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Shareholder.
(c) The Shareholders’ Representative shall act for the Shareholders on all of the matters set forth in this Agreement shall require and the transactions contemplated hereby in the manner the Shareholders’ Representative believes in good faith to expend or risk its own funds or otherwise incur any financial liability be in the exercise or performance best interest of any of the Shareholders and consistent with its powers, rights, duties or privileges obligations under this Agreement on behalf of any Selling PartiesAgreement. The Shareholders’ Representative shall not be responsible to the Shareholders for any damages they may in good faith rely conclusively upon suffer by reason of the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken performance by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithof the powers, authority and duties of the Shareholders’ Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Shareholders’ Representative.
(cd) Notwithstanding Each Shareholder agrees to indemnify and hold harmless the foregoing provisions in Shareholders’ Representative from, and promptly reimburse the Shareholders’ Representative for, any loss, damage, fees, costs or expenses arising from the performance of the powers, authority and duties of the Shareholders’ Representative hereunder, including the reasonable cost of any legal counsel or accountants retained by the Shareholders’ Representative on behalf of the Shareholders or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this ARTICLE VIIIAgreement by the Shareholders’ Representative.
(e) All actions, decisions and instructions of the Shareholders’ Representative taken, made or any provision given pursuant to the contrary set forth in power or authority granted to the Shareholders’ Representative pursuant to this Section 6.19 shall be conclusive and binding upon each Shareholder, and no Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. Each of Stellar and Edesa shall be entitled to rely solely on the Shareholders’ Representative with respect to any action or decision required to be made, taken, agreed to or consented to by the Shareholders under this Agreement or the Option Agreementother Transaction Documents. Any action or decision taken or made by Stellar or Edesa under this Agreement or the other Transaction Documents with the consent or agreement of, or at the request of, the Shareholders’ Representative shall only have the power or authority to act be deemed approved, consented to, conclusive and binding on all Shareholders, regardless of whether any such Shareholder was provided with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase notice of any Selling Party’s indemnity such action or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesdecision.
Appears in 1 contract
Samples: Share Exchange Agreement (Stellar Biotechnologies, Inc.)
Shareholders’ Representative. (a) The Selling PartiesUpon the closing of the Merger, by adopting this Agreement Xx. Xxxxx Xxxxxxxx shall be constituted and appointed as agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the "Shareholders’ Representative ' Representative") for and on behalf of the Selling Parties, with the authority (i) to perform the obligations each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Shareholders to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to Claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the holders vote of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Partiesreceive no compensation for its services, except for notices related to any action for which payment by the Selling Parties’ consent is required under the terms Shareholders of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from expenses, including fees of counsel, reasonably incurred by the Shareholders’ Representative, including ' Representative in electronic formconnection with the performance of its duties hereunder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it such agent harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIA decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group decision of all Shareholders and not matters pertaining to an individual Selling Party (for example but not by way of limitationshall be final, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)binding and conclusive upon each Shareholder, and the powers conferred on Parent may rely upon any decision, act, consent or instruction of the Shareholders’ ' Representative herein taken in such manner as being the decision, act, consent or instruction of each and every Shareholder. Parent is hereby relieved from any liability to any person for any acts done by them in the Option Agreement shall not authorize accordance with such decision, act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative Representative, who shall initially be Rxxxxx X. Xxxxxxx, is constituted and appointed as agent for and on behalf of the Selling Parties, with the authority (i) to perform the obligations Pre-Closing Shareholders as of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Effective Time to give and receive notices and communications, (iii) to authorize delivery to Acquiror of funds from the Escrow Fund in satisfaction of claims by Acquiror, to object to such deliveries, to make claims on behalf of the Pre-Closing Shareholders, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withmake claims and comply with awards with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, or otherwise as permitted hereunder. K Laser hereby accepts its appointment as the The Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Pre-Closing Shareholders from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserAcquiror. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling PartiesPre-Closing Shareholders. Without limiting the generality of the foregoing, except for notices related the Shareholders’ Representative shall have the full power and authority to any action for which the Selling Parties’ consent is required under interpret all the terms and provisions of this Agreement and to consent to any amendment hereof or applicable law. Each Selling Party agrees to receive correspondence from the thereof in its capacity as Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith.
(c) The Shareholders’ Representative shall be given reasonable access to information about the Surviving Corporation and absence the reasonable assistance of negligence. The Selling Parties the Surviving Corporation’s officers and employees for purposes of performing its duties and exercising its rights hereunder, and shall severally have the right to reimbursement from the Escrow Fund of his reasonable fees and expenses (including attorneys’ fees and not jointly), according to each Selling Parties’ pro-rata interest the costs of experts and advisors) incurred in the shares of Everest, indemnify connection with his duties as the Shareholders’ Representative hereunder and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on as the part of the ShareholdersInvestors’ Representative and arising out of or in connection with under the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any Rollover Agreement.
(d) Any action taken by the Shareholders’ Representative based on such reliance pursuant to the authority granted in this Section 10.08 shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding effective and absolutely binding as the foregoing provisions in action of the Pre-Closing Shareholders under this ARTICLE VIIIAgreement. Acquiror may rely upon any decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ Representative shall only have as being the power decision, act, consent or authority instruction of each and every Pre-Closing Shareholder. Acquiror is hereby relieved from any liability to act any Person for any acts done by them in accordance with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way such decision, act, consent or instruction of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive delivery of, and all payments under, the Option AgreementNote and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts payable under the Note, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to agree to setoffs against the Note and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon the later to occur of (i) termination of Sellers' obligations pursuant to Article III or (ii) payments of all amounts due under the Note and distribution thereof to the Sellers. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares Sellers, with each Seller to have that number of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formvotes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(bm) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Section 7.1(h) of the Shareholders’ Representative Amended and arising out of or Restated Agreement is amended to provide in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties full as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.follows:
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesCxxxxxx Xxxxxxx (such person and any successor or successors being the “Shareholders’ Representative”) shall act as the representative of the Company Series A Preferred Holders, and shall be authorized to act on behalf of the Company Series A Preferred Holders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for and on behalf indemnification pursuant to this Article IX (including, without limitation, the exercise of the Selling Parties, with the authority power to (i) to perform authorize the obligations right of the Shareholders’ Representative setoff set forth in this Agreement and the Option AgreementSection 9.5 in satisfaction of claims by a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article IX, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Series A Preferred Holders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Company Series A Preferred Holders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Company Series A Preferred Holders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall not be liable for promptly, and in any act done or omitted hereunder as event within ten (10) business days, provide written notice to the Company Series A Preferred Holders of any action taken on behalf of them by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according authority delegated to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossunder this Section 9.6. The Shareholders’ Representative shall at all times act in his, liability her or expense incurred without gross negligence or bad faith on the part of its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative and arising out believes to be in the best interest of or in connection with the acceptance or administration of his duties hereunderCompany Series A Preferred Holders. No provision of this Agreement shall require Neither the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it.
(c) Each Company Series A Preferred Holder shall indemnify and hold harmless and reimburse the Shareholders’ Representative from and against such Company Series A Preferred Holder’s ratable share of any and all liabilities, and losses, damages, claims, costs or expenses suffered or incurred by the Shareholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholders’ Representative based on under this Agreement, other than such reliance shall be deemed conclusively to have been taken in good faithliabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, bad faith or willful misconduct.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision anything to the contrary set forth in this Agreement or the Option Agreementherein, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and is not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such Company Shareholder is entitled under this Agreement (other than to take delivery and hold in trust on behalf of the powers conferred on Company Series A Preferred Holders the Promissory Note and any replacement thereof) and the Shareholders’ Representative herein and in the Option Agreement shall not authorize in any manner exercise, or empower seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative is expressly authorized to do or cause to be done any action (including so in a writing signed by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch Company Shareholder.
Appears in 1 contract
Samples: Merger Agreement (DemandTec, Inc.)
Shareholders’ Representative. (a) Shareholders hereby irrevocably appoint Jxxxx Xxxxxx as the Shareholders Representative to act as their agent and attorney-in-fact for purposes of this Agreement, and consent to the taking by the Shareholders Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement. The Shareholders Representative hereby agrees to negotiate, enter into settlements and compromises of claims for indemnification including Direct Claims, Third Party Claims and Tax Claims to comply with Orders with respect to such Claims, resolve any Claim made pursuant to ARTICLE X of this Agreement, take all actions necessary in his judgment for the accomplishment of the foregoing and hereby accepts his appointment on behalf of Shareholders as the Shareholders Representative for purposes of this Agreement. Except for indemnification claims that relate to a specific Selling PartiesShareholder (and not the other Selling Shareholders) or provisions related to the performance of a specific Selling Shareholder (which are not generally applied to all of the Selling Shareholders), by adopting the Buying Parties shall be entitled to deal with the Shareholders Representative on all matters relating to this Agreement and shall be entitled to rely on documents executed on behalf of Shareholders by the transactions contemplated herebyShareholders Representative, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on any other action taken on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholder by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Shareholders Representative, including in electronic formas fully binding upon Shareholders.
(b) If the Shareholders Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of Shareholders, then Shareholders shall, within 10 days after such death or disability, appoint a successor representative reasonably satisfactory to the Buyer. Any such successor shall become the “Shareholders Representative” for purposes of this Agreement.
(c) The Shareholders’ Shareholders Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Shareholders Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares exercise of Everest, reasonable judgment. Shareholders shall indemnify the Shareholders’ Shareholders Representative and hold it the Shareholders Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholders’ Shareholders Representative and arising out of or in connection with the acceptance or administration of his the Shareholders Representative’s duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholders Representative.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ The Shareholder Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that may disclose information (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementrequired by Law, (ii) alters to advisors or consultants of the consideration payable to any Selling Party pursuant to this Agreement or the Option AgreementShareholder Representative, or and (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations)Selling Shareholders, in each case with respect who have a need to clauses (i)know such information, (ii) and (iii) provided that such persons are bound by obligations of confidentiality to the Shareholder Representative of at least as high a standard as those imposed on the Shareholder Representative under this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAgreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zynex Inc)
Shareholders’ Representative. (a) The Selling PartiesXxxx Xxxxx (such person and any successor being the “Shareholders’ Representative”) shall act as the representative of the Company Shareholders, and shall be authorized to act on behalf of the Company Shareholders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for and on behalf indemnification pursuant to this Article IX (including, without limitation, the exercise of the Selling Parties, with the authority power to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (ii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article IX, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Shareholders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Company Shareholders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Company Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall not be liable for promptly, and in any act done or omitted hereunder as event within five business days, provide written notice to the Company Shareholders of any action taken on behalf of them by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according authority delegated to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability under this Section 9.05. The Shareholders’ Representative shall at all times act in his or expense incurred without gross negligence or bad faith on the part of her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative and arising out believes to be in the best interest of or in connection with the acceptance or administration of his duties hereunderCompany Shareholders. No provision of this Agreement shall require Neither the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it, and any action taken by the . The Shareholders’ Representative based on such reliance shall be deemed conclusively not have any duty to have been taken in good faith.
(c) Notwithstanding ascertain or to inquire as to the foregoing provisions performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power not exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action.
(c) Each Company Shareholder shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ Representative herein from and in the Option Agreement shall not authorize against such Company Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amendingthe Shareholders’ Representative under this Agreement, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary herein, the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such Company Shareholder is entitled under this Agreement and the Option Agreement, (ii) alters the consideration payable to Shareholders’ Representative shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative is expressly authorized to do so in a writing signed by such Company Shareholder.
Appears in 1 contract
Samples: Merger Agreement (DemandTec, Inc.)
Shareholders’ Representative. (a) The Selling PartiesXxxxx Xxxxxxxx (such person and any successor being the “Shareholders’ Representative”) shall act as the representative of the Shareholders, and shall be authorized to act on behalf of the Shareholders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article VIII and on behalf of the Selling Parties, with the authority (i) respect to perform the obligations of any actions to be taken by the Shareholders’ Representative set forth in this pursuant to the Escrow Agreement and (including, without limitation, the Option Agreementexercise of the power to (i) authorize the delivery of the Escrow Fund to a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect t any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article VIII, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Shareholders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall promptly, and in any event within five (5) business days, provide written notice to the Shareholders of any action taken on behalf of them by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 8.6. The Shareholders’ Representative shall, at all times, act in his or her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interest of the Shareholders. Neither the Shareholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders’ Representative shall not be liable have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As t any matters not expressly provided for any act done in this Agreement or omitted hereunder as the Escrow Agreement, the Shareholders’ Representative while acting in good faith and without negligence and shall not exercise any act done discretion or omitted pursuant take any action.
(c) Notwithstanding anything to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest contrary herein or in the shares of EverestEscrow Agreement, indemnify the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to which such Shareholder is entitled under this Agreement and the Shareholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Shareholder unless Shareholders’ Representative is expressly authorized to do so in a writing signed by such Shareholder.
(d) If Shareholders’ Representative shall die, resign, become disabled or otherwise be unable to fulfill his responsibilities hereunder, or if Shareholders owning a majority of Shares of the Surviving Corporation owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing) shall elect to remove (with or without cause) Shareholders’ Representative, Shareholders shall (by consent of Shareholders owning at least a majority of shares of the Company owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing), within 10 days after such death, resignation, disability, inability or removal, appoint a successor to Shareholders’ Representative (who shall be reasonably satisfactory to Parent). Any such successor shall succeed Shareholders’ Representative as Shareholders’ Representative hereunder. If for any reason there is no Shareholders’ Representative at any time, all references herein to Shareholders’ Representative shall be deemed to refer to Shareholders holding a majority of the Shares.
(e) Shareholders, jointly and severally, agree to indemnify Shareholders’ Representative and to hold it Shareholders’ Representative harmless against any and all loss, liability or expense incurred without fraud, willful misconduct or gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require as Shareholders’ Representative, including the reasonable costs and expenses incurred by Shareholders’ Representative to expend in defending against any claim or risk its own funds or otherwise incur any financial liability in connection with this Agreement. This indemnification shall survive the exercise or performance termination of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesAgreement. The costs of such indemnification (including the costs and expenses of enforcing the right of indemnification) shall be paid by the Shareholders pro rata in accordance with amounts of the total Purchase Price to be received by each Shareholder (and assuming payment in full of the Earn out Payments). Shareholders’ Representative may may, in good faith all questions arising under this Agreement, rely conclusively upon on the informationadvice of counsel and for anything done, reports, statements and opinions prepared omitted or presented suffered by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on in accordance with such reliance advice, Shareholders’ Representative, solely in its capacity as Shareholders’ Representative, shall not be deemed conclusively liable to have been taken Shareholders, except as expressly provided hereunder. In no event shall Shareholders’ Representative be liable to Shareholders hereunder or in good faithconnection herewith, solely in its capacity as Shareholders’ Representative, for any consequential, special, consequential or punitive damages.
(cf) Notwithstanding Neither Parent nor its Affiliates shall have the foregoing provisions in this ARTICLE VIIIright to object to, protest or otherwise contest any provision matter related to the contrary set forth in this Agreement or the Option Agreement, the procedures for action being taken by Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the between Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. 11.11.1. By virtue of the execution of this Agreement, each Consideration Recipient herby irrevocably agrees, constitutes and appoints Xxx Xxxxxxxx as the true, exclusive and lawful agent and attorney in fact of the Consideration Recipients (ai) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser to act as the Shareholders’ Representative for and on behalf of the Selling PartiesConsideration Recipients and to have the right, with the power and authority (i) to perform all actions (or refrain from taking any actions) the obligations of the Shareholders’ Shareholder’s Representative set forth shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement and the Option Agreementtransactions contemplated herein (the “Transaction”), (ii) to give act in the name, place and receive notices stead of each Consideration Recipient (A) in connection with the Transaction, in accordance with the terms and communicationsprovisions of this Agreement, and (B) in any Claim involving this Agreement, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the Transaction (including any Transaction Document). Without derogating from the generality of the above, the Shareholders’ Representative shall have the right, power and authority to act for the Consideration Recipients in connection with indemnification to be provided under Section 9 and to agree to, negotiate, and enter into settlements, adjustments and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expensescomply with orders of courts and awards of arbitrators with respect to, in connection withsuch claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or (ii) specifically mandated or permitted by the terms of this Agreement. K Laser hereby accepts its appointment as The Consideration Recipients will be bound by all actions taken by Shareholders’ Representative in connection with the Transaction Documents. The Shareholders’ Representative may resign at any time; provided, that the Shareholders’ Representative. Such agency Representative may not be changed removed unless a majority of the Consideration Recipients (as determined by the vote of the majority holders of the shares issued herein) agree in writing to such removal and that a new substituted Shareholders’ Representative is being appointed (whose identity shall be determined by such then majority of Consideration Recipients, as determined by the vote of the holders of the majority of the BiomX shares issued herein). A vacancy (including by way of a Deemed Resignation) in the position of the Shareholders’ Representative may be filled by a majority in interest of the Consideration Recipients (as determined by the vote of the majority holders of the shares issued herein) and subject to Purchaser’s approval of Everest of the Selling Parties from time such successor Shareholders’ Representative, not to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserbe unreasonably withheld or delayed. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Consideration Recipients. The Consideration Recipients shall cause a Person to be appointed promptly as the Shareholders’ Representative if at any time there is no Person serving as the Shareholders’ Representative for any reason.
11.11.2. A decision, act, consent or instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative an amendment, extension or waiver of the Transaction Documents, shall not be liable for any act done or omitted hereunder as constitute a decision of all the Shareholders’ Representative while acting in good faith Consideration Recipients and without negligence and any act done or omitted pursuant to the advice of counsel shall be final, binding and conclusive evidence of upon the Consideration Recipients. Purchaser is entitled to rely upon any such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)decision, according to each Selling Parties’ pro-rata interest in the shares of Everestact, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability consent or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative and arising out as being the decision, act, consent or instruction of all the Consideration Recipients. The Purchaser is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or in connection with the acceptance or administration instruction of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Shareholder Representative Services LLC as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementagreements ancillary hereto, including, but not limited to, (iii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties shares of Company Capital Stock (on an as converted to Ordinary Shares and Ordinary A Shares basis) outstanding immediately prior to Parent the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Ordinary Shares and PurchaserOrdinary A Shares basis) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement Agreement. Upon the Closing, the Company will wire US$30,000 (the “Expense Fund”) to the Shareholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Samples: Merger Agreement (Chardan Healthcare Acquisition Corp.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf By virtue of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect adoption of this Agreement and the Option approval of the Acquisition by the Shareholders, the Shareholders hereby designate and appoint MDS Capital Corp. as their representative for the purposes set forth in this Section 1.3 (the "Shareholders' Representative"). By signing this Agreement, (iv) to retain legal counsel, accountants, consultants MDS Capital Corp. accepts the foregoing designation and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in appointment by the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment Shareholders as the Shareholders’ ' Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Shareholders hereby authorize the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant (A) to execute the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith Escrow Agreement on the part behalf of the Shareholders as Shareholders’ Representative ' Representative; (B) to act as representative of the Shareholders in connection with any and all matters arising out of or under the Escrow Agreement; (C) to take all action necessary in connection with the acceptance defense and/or settlement of any claims for which the Shareholders may be required to indemnify Cubist, the Acquisition Sub and/or the Company pursuant to the Escrow Agreement or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative ' Agreement; (D) to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersgive and receive, rights, duties or privileges under this Agreement on behalf of the Shareholders, all notices required to be given under this Agreement, the Shareholders' Agreement and the Escrow Agreement; and (E) to take any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the informationand all additional action as is required, reports, statements and opinions prepared contemplated or presented by counsel or other professionals retained by it, and any action permitted to be taken by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faithbehalf of the Shareholders by the terms of this Agreement, the Shareholders' Agreement, the Escrow Agreement, the Plan of Arrangement or any of the other Acquisition Documents.
(c) Notwithstanding In the foregoing provisions in this ARTICLE VIIIevent that the Shareholders' Representative becomes unable to perform his responsibilities hereunder or resigns from such position, or any provision the Shareholders holding, immediately prior to the contrary set forth in Effective Time, a majority of the combined voting power of the Company Shares then outstanding shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement, the Escrow Agreement and the Shareholders' Agreement and the documents delivered pursuant hereto and thereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and Cubist relating to the defense or settlement of any claims for which the Shareholders may be required to indemnify Cubist, Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Option Shareholders' Agreement, shall be binding upon all of the Shareholders and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By virtue of the adoption of this Agreement and the approval of the Acquisition by the Shareholders, each Shareholder agrees that:
(i) Cubist and Acquisition Sub shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to the settlement of any claims for indemnification by Cubist, Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders' Agreement or any other actions required, permitted or contemplated to be taken by the Shareholders' Representative hereunder or under the Escrow Agreement, the Shareholders’ ' Agreement, the Plan of Arrangement or any other Acquisition Document and no party to any Acquisition Document shall have any cause of action against Cubist or Acquisition Sub to the extent Cubist or Acquisition Sub, as the case may be, has relied upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall only be conclusive and binding upon all of the Shareholders and no Shareholder shall have the power any right of recovery or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way cause of limitation, an action of any kind whatsoever against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ ' Representative herein and in the Option Agreement shall not authorize for any action taken, decision made or empower instruction given by the Shareholders’ ' Representative to do (in such capacity) under this Agreement or cause to be done any action (including by amendingother Acquisition Document, modifying except for fraud or waiving any provision willful breach of this Agreement or by the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' Representative;
(iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c)1.3 are independent and severable, without first obtaining are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the prior written approval transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the Selling Partiesprovisions of this Section 1.3 are inadequate; therefore, Cubist, Acquisition Sub and/or the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Cubist, Acquisition Sub and/or the Company brings an action to enforce the provisions of this Section 1.3; and
(v) the provisions of this Section 1.3 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Shareholder, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Shareholders' Representative shall be paid by the Shareholders in proportion to their ownership of Company Shares immediately prior to the Effective Time.
Appears in 1 contract
Shareholders’ Representative. (a) MJN shall act as the representative of holders of Company Capital Stock (referred to in his capacity as such representative as the “Shareholders’ Representative”) and shall be authorized to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Shareholders’ Representative determines in Shareholders’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable, which authority includes the execution and delivery of the Escrow Agreement and any amendments or supplements thereto and the performance of all obligations thereunder, including authority to collect and pay funds and dispute, settle, compromise and make all claims. The Selling Partiesauthority of Shareholders’ Representative includes the right to hire or retain, by adopting at the sole expense of the holders of Company Capital Stock, such counsel, investment bankers, accountants, representatives and other professional advisors as Shareholders’ Representative determines in Shareholders’ Representative sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as Escrow Agreement. Any party will have the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) right to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time rely upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the taken by Shareholders’ Representative, including and to act in electronic formaccordance with such action without independent investigation.
(b) The Parent will have no liability to any holder of Company Capital Stock or otherwise arising out of the acts or omissions of Shareholders’ Representative shall not be liable for or any act done disputes among holders of Company Capital Stock or omitted hereunder as the with Shareholders’ Representative while acting in good faith Representative. Parent may rely entirely on its dealings with, and without negligence notices to and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)from, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur satisfy any financial liability in the exercise or performance of any of its powers, rights, duties or privileges obligations it might have under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power Escrow Agreement or authority any other agreement referred to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
