Shareholders’ Representative. (a) By virtue of the the approval of the Merger and this Agreement by the Shareholders and without any further action of any of the Shareholders or the Company, Fortis Advisors LLC is hereby appointed as the exclusive agent and attorney-in-fact for each of the Shareholders, (i) to enter into and deliver the Escrow Agreement on behalf of each of the Shareholders, (ii) to 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 (iii) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders, except as expressly provided herein, in the Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedules. The Shareholders’ Representative may resign at any time and such agency may be changed by the Shareholders as of immediately prior to the Effective Time from time to time upon no less than twenty (20) 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 shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders. (b) Certain Shareholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, 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 (collectively, the “Shareholders’ Representative Group”), shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under the Shareholders’ Representative Engagement Agreement while acting in good faith and in the exercise of reasonable business judgment. The Shareholders shall indemnify, defend and hold harmless the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Shareholders’ Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered directly from the Shareholders. The Shareholders 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, the Escrow Agreement, 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. A decision, act, consent or instruction of the Shareholders’ Representative under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement are waived. The powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of his, her or its interest in the Escrow Fund or the Company Earn-out Shares. The Shareholders’ Representative shall be entitled to: (i) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Shareholder or other party.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of the the approval of the Merger and this Agreement by the Shareholders Company Shareholder Approval, and without any further action act of any holder of Company Shares, the Shareholders or the Companyholders of Company Shares will be deemed to have appointed Xxxx X. Xxxxxx, Fortis Advisors LLC is hereby appointed Inc. (previously defined as the exclusive Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and receive notices and communications; to bind the Shareholders, (i) to enter into and deliver the Escrow Agreement on behalf holders of each of the Shareholders, (ii) to authorize or object to delivery Company Shares to the Purchaser terms of the Escrow Fund, or any portion thereof, Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow AgreementParent or Surviving Corporation; to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and (iii) 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 the foregoing under this Agreement, the Escrow Agreement or the foregoing.
(b) The Shareholders’ Representative Engagement Agreement. Notwithstanding may be changed by the foregoingholders of Company Shares from time to time upon not less than 30 days’ prior written notice to Parent, the Shareholders’ Representative shall have no obligation to act on behalf provided that holders of a majority interest of the ShareholdersEscrow Amount agree to such removal of Xxxx X. Xxxxxx, except as expressly provided herein, in Inc. and any successors thereto and to the Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations identity of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedulessubstituted agent. The A Shareholders’ Representative may resign at any time and such agency may be changed by the Shareholders as of immediately prior to the Effective Time from time to time upon no less than twenty (20) days prior giving at least 30 days’ written notice to the Purchaser Parties andholders of interest in the Escrow Account, if after except that no such resignation will become effective until the Closing, the Purchaser, provided, however, that the appointment of a successor Shareholders’ Representative may not be removed unless holders Representative. Upon resignation of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. The immunities and rights to indemnification shall survive the resignation or removal of the a Shareholders’ Representative or any member a successor Shareholders’ Representative thereto, the holders of a majority interest of the Advisory Group and the Closing and/or any termination Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of this Agreement and a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond shall will be required of the any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative shall will constitute notice to or from each of the Shareholdersholders of interest of the Escrow Amounts for all matters relating to this Agreement.
(bc) Certain Shareholders have entered into an engagement agreement (the “The Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, 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 (collectively, the “Shareholders’ Representative Group”), shall will not be liable for any act done or omitted hereunder, under the Escrow Agreement or under hereunder as the Shareholders’ Representative Engagement Agreement while acting in good faith and in faith. Holders of Company Shares on whose behalf the exercise of reasonable business judgment. The Shareholders shall indemnify, defend and hold harmless Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, hold the “Shareholders’ Representative Expenses”) harmless against all loss, liability, or expense incurred without gross negligence bad faith or willful misconduct on the part of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its such Shareholders’ Representative’s duties hereunder, under including the Escrow Agreement or under reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative Engagement AgreementRepresentative. Such The Shareholders’ Representative Expenses may will be recovered directly from entitled to the Shareholders. The Shareholders 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 advance and reimbursement of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, 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, costs and expenses and liabilities which may be incurred by or on behalf of the Shareholders’ Representative in performing such actions. the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under this Agreement, the Escrow Agreement Agreements or any other document or agreement entered into in connection herewith or therewith (the Shareholders’ Representative Engagement Agreement shall“Indemnified Persons”), for all purposes hereunder, constitute a may rely upon any such decision, act, consent consent, or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in good faith under this Agreementaccordance with such decision, act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Escrow Agreement or Major Shareholders, and the Shareholders’ Representative Engagement Agreement are waived. The powershave signed or caused their respective duly authorized officers to sign this Agreement, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder all as of the whole or any fraction date first written above. FLOW INTERNATIONAL CORPORATION By /s/ Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx Its President ORANGE ACQUISITION CORPORATION By /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx Its President OMAX CORPORATION By /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx Its SHAREHOLDERS’ REPRESENTATIVE Xxxx X. Xxxxxx, Inc. /s/ Xxxx X. Xxxxxx (signature page continues) PUGET PARTNERS, L.P. Major Shareholder By: Xxxx X. Xxxxxx Inc. Its General Partner By /s/ Xxxx X. Xxxxxx Its President /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx Major Shareholder /s/ Xxxxx X. X’Xxxxxx Xxxxx X. X’Xxxxxx Major Shareholder /s/ Xxxx X. Xxxxx Xxxx X. Xxxxx Major Shareholder Dated as of hisSeptember 9, her or its interest in the Escrow Fund or the Company Earn-out Shares. The Shareholders’ Representative shall be entitled to: (i) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company2008 Amended November 10, (ii) rely upon any signature believed by it to be genuine2008 Amended and Restated [•], and (iii) reasonably assume that a signatory has proper authorization to sign on behalf 2009 ARTICLE I THE MERGER
1.1 Effective Time of the applicable Shareholder or other party.Merger 11 1.2 Closing 11 1.3 Effects of the Merger 11
Appears in 1 contract
Samples: Agreement and Plan of Merger (Flow International Corp)
Shareholders’ Representative. (a) By virtue of the the approval of the Merger and this Agreement by the Shareholders Company Shareholder Approval, and without any further action act of any holder of Company Shares, the Shareholders or the Companyholders of Company Shares will be deemed to have appointed Xxxx X. Xxxxxx, Fortis Advisors LLC is hereby appointed Inc. (previously defined as the exclusive Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and receive notices and communications; to bind the Shareholders, (i) to enter into and deliver the Escrow Agreement on behalf holders of each of the Shareholders, (ii) to authorize or object to delivery Company Shares to the Purchaser terms of the Escrow Fund, or any portion thereof, Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow AgreementParent or Surviving Corporation; to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and (iii) 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 the foregoing under this Agreement, the Escrow Agreement or the foregoing.
(b) The Shareholders’ Representative Engagement Agreement. Notwithstanding may be changed by the foregoingholders of Company Shares from time to time upon not less than 30 days’ prior written notice to Parent, the Shareholders’ Representative shall have no obligation to act on behalf provided that holders of a majority interest of the ShareholdersEscrow Amount agree to such removal of Xxxx X. Xxxxxx, except as expressly provided herein, in Inc. and any successors thereto and to the Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations identity of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedulessubstituted agent. The A Shareholders’ Representative may resign at any time and such agency may be changed by the Shareholders as of immediately prior to the Effective Time from time to time upon no less than twenty (20) days prior giving at least 30 days’ written notice to the Purchaser Parties andholders of interest in the Escrow Account, if after except that no such resignation will become effective until the Closing, the Purchaser, provided, however, that the appointment of a successor Shareholders’ Representative may not be removed unless holders Representative. Upon resignation of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. The immunities and rights to indemnification shall survive the resignation or removal of the a Shareholders’ Representative or any member a successor Shareholders’ Representative thereto, the holders of a majority interest of the Advisory Group and the Closing and/or any termination Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of this Agreement and a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond shall will be required of the any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative shall will constitute notice to or from each of the Shareholdersholders of interest of the Escrow Amounts for all matters relating to this Agreement.
(bc) Certain Shareholders have entered into an engagement agreement (the “The Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, 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 (collectively, the “Shareholders’ Representative Group”), shall will not be liable for any act done or omitted hereunder, under the Escrow Agreement or under hereunder as the Shareholders’ Representative Engagement Agreement while acting in good faith and in faith. Holders of Company Shares on whose behalf the exercise of reasonable business judgment. The Shareholders shall indemnify, defend and hold harmless Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, hold the “Shareholders’ Representative Expenses”) harmless against all loss, liability, or expense incurred without gross negligence bad faith or willful misconduct on the part of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its such Shareholders’ Representative’s duties hereunder, under including the Escrow Agreement or under reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative Engagement AgreementRepresentative. Such The Shareholders’ Representative Expenses may will be recovered directly from entitled to the Shareholders. The Shareholders 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 advance and reimbursement of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, 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, costs and expenses and liabilities which may be incurred by or on behalf of the Shareholders’ Representative in performing such actions. the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under this Agreement, the Escrow Agreement Agreements or any other document or agreement entered into in connection herewith or therewith (the Shareholders’ Representative Engagement Agreement shall“Indemnified Persons”), for all purposes hereunder, constitute a may rely upon any such decision, act, consent consent, or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in good faith under this Agreementaccordance with such decision, act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Escrow Agreement or Major Shareholders, and the Shareholders’ Representative Engagement Agreement are waived. The powershave signed or caused their respective duly authorized officers to sign this Agreement, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder all as of the whole or any fraction of hisdate first written above. FLOW INTERNATIONAL CORPORATION By /s/ Xxxxxxx X. Xxxxx Its President and CEO ORANGE ACQUISITION CORPORATION By /s/ Xxxx Xxxxxx Its President OMAX CORPORATION By /s/ Xxxx X. Xxxxxx Its Chairman and CEO SHAREHOLDERS’ REPRESENTATIVE /s/ Xxxx X. Xxxxxx (signature page continues) /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx Major Shareholder (signature page continues) /s/ Xxxx X. Xxxxx Xxxx X. Xxxxx Major Shareholder (signature page continues) /s/ Xxxxx X. X’Xxxxxx Xxxxx X. X’Xxxxxx Major Shareholder (signature page continues) PUGET PARTNERS, her or its interest in the Escrow Fund or the Company Earn-out Shares. The Shareholders’ Representative shall be entitled to: L.P. Major Shareholder By /s/ Xxxx X. Xxxxxx Its General Partner (i) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf page continues)
1.1 Effective Time of the applicable Shareholder or other party.Merger 1 1.2 Closing 1 1.3 Effects of the Merger 1
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of the the approval of the Merger and this Agreement by the Shareholders Company Shareholder Approval, and without any further action act of any holder of Company Shares, the Shareholders or the Companyholders of Company Shares will be deemed to have appointed Xxxx X. Xxxxxx, Fortis Advisors LLC is hereby appointed Inc. (previously defined as the exclusive Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and receive notices and communications; to bind the Shareholders, (i) to enter into and deliver the Escrow Agreement on behalf holders of each of the Shareholders, (ii) to authorize or object to delivery Company Shares to the Purchaser terms of the Escrow Fund, or any portion thereof, Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow AgreementParent or Surviving Corporation; to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and (iii) 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 the foregoing under this Agreement, the Escrow Agreement or the foregoing.
(b) The Shareholders’ Representative Engagement Agreement. Notwithstanding may be changed by the foregoingholders of Company Shares from time to time upon not less than 30 days’ prior written notice to Parent, the Shareholders’ Representative shall have no obligation to act on behalf provided that holders of a majority interest of the ShareholdersEscrow Amount agree to such removal of Xxxx X. Xxxxxx, except as expressly provided herein, in Inc. and any successors thereto and to the Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations identity of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedulessubstituted agent. The A Shareholders’ Representative may resign at any time and such agency may be changed by the Shareholders as of immediately prior to the Effective Time from time to time upon no less than twenty (20) days prior giving at least 30 days’ written notice to the Purchaser Parties andholders of interest in the Escrow Account, if after except that no such resignation will become effective until the Closing, the Purchaser, provided, however, that the appointment of a successor Shareholders’ Representative may not be removed unless holders Representative. Upon resignation of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. The immunities and rights to indemnification shall survive the resignation or removal of the a Shareholders’ Representative or any member a successor Shareholders’ Representative thereto, the holders of a majority interest of the Advisory Group and the Closing and/or any termination Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of this Agreement and a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond shall will be required of the any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative shall will constitute notice to or from each of the Shareholdersholders of interest of the Escrow Amounts for all matters relating to this Agreement.
(bc) Certain Shareholders have entered into an engagement agreement (the “The Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, 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 (collectively, the “Shareholders’ Representative Group”), shall will not be liable for any act done or omitted hereunder, under the Escrow Agreement or under hereunder as the Shareholders’ Representative Engagement Agreement while acting in good faith and in faith. Holders of Company Shares on whose behalf the exercise of reasonable business judgment. The Shareholders shall indemnify, defend and hold harmless Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, hold the “Shareholders’ Representative Expenses”) harmless against all loss, liability, or expense incurred without gross negligence bad faith or willful misconduct on the part of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its such Shareholders’ Representative’s duties hereunder, under including the Escrow Agreement or under reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative Engagement AgreementRepresentative. Such The Shareholders’ Representative Expenses may will be recovered directly from entitled to the Shareholders. The Shareholders 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 advance and reimbursement of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, 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, costs and expenses and liabilities which may be incurred by or on behalf of the Shareholders’ Representative in performing such actions. the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under this Agreement, the Escrow Agreement Agreements or any other document or agreement entered into in connection herewith or therewith (the Shareholders’ Representative Engagement Agreement shall“Indemnified Persons”), for all purposes hereunder, constitute a may rely upon any such decision, act, consent consent, or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in good faith under this Agreementaccordance with such decision, act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Escrow Agreement or Major Shareholders, and the Shareholders’ Representative Engagement Agreement are waived. The powershave signed or caused their respective duly authorized officers to sign this Agreement, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder all as of the whole or any fraction of his, her or its interest in the Escrow Fund or the Company Earn-out Sharesdate first written above. The ShareholdersFLOW INTERNATIONAL CORPORATION By Its ORANGE ACQUISITION CORPORATION By Its OMAX CORPORATION By Its SHAREHOLDERS’ Representative shall be entitled to: REPRESENTATIVE (isignature page continues) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf Major Shareholder [•]
ARTICLE I THE MERGER
1.1 Effective Time of the applicable Shareholder or other party.Merger 1 1.2 Closing 1 1.3 Effects of the Merger 1
Appears in 1 contract
Shareholders’ Representative. 7.4.1 Effective only upon the Effective Time, Shareholder Representative Services, LLC (asuch entity or person and any successor or successors being the “Shareholders’ Representative”) By virtue shall act as the representative of the the approval Company Shareholders, and shall be authorized to act on behalf of the Merger Company Shareholders and to take any and all actions required or permitted to be taken by the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Trintech Party for indemnification pursuant to this Article VII and with respect to any actions to be taken by the Shareholders and without any further action of any Shareholders’ Representative pursuant to the terms of the Shareholders or Escrow Agreement (including, without limitation, the Company, Fortis Advisors LLC is hereby appointed as the exclusive agent and attorney-in-fact for each AGREEMENT AND PLAN OF MERGER PAGE 41 exercise of the Shareholders, power to (i) to enter into and deliver authorize the delivery of cash from the Escrow Agreement on behalf Account to a Trintech Party in satisfaction of each of the Shareholdersclaims by a Trintech Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to authorize or object to delivery to the Purchaser of the Escrow Fund, or any portion thereof, in satisfaction of claims for indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and (iii) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing under foregoing). In all matters relating to this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement. Notwithstanding the foregoingArticle VII, the Shareholders’ Representative shall have no obligation be the only party entitled to act on behalf assert the rights of the Company Shareholders, except as expressly provided herein, in the Escrow Agreement and in the Shareholders’ Representative Engagement Agreementshall perform all of the obligations of the Company Shareholders hereunder. The Trintech Parties shall be entitled to rely on all statements, representations and for purposes of clarity, there are no obligations decisions of the Shareholders’ Representative. The Shareholders’ Representative in is not entitled to amend this Agreement or take any ancillary agreement, schedule, exhibit or actions relating to this Agreement prior to the Company Disclosure SchedulesEffective Time. The Shareholders’ Representative may resign at any time upon not less than 20 days’ prior written notice to Trintech, Inc. and such agency may be changed the Senior Preferred Holders. The Senior Preferred Holders by the Shareholders as vote of immediately prior to a majority-in-interest of the Effective Time Base Escrow Amount included in the Escrow Fund may remove the Shareholders’ Representative from time to time upon no not less than twenty (20) days 20 days’ prior written notice to the Purchaser Parties andTrintech, 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 shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Inc. Any vacancy in the position of the Shareholders’ Representative may be filled by the approval of the holders of at least 51% of all of a majority-in-interest in the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective TimeEscrow Fund. Any removal or change of the successor Shareholders’ Representative shall not be effective until written notice is delivered acknowledge in writing to the Parent or PurchaserTrintech, Inc. his acceptance of his appointment as applicable. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders.
(b) Certain 7.4.2 The Company Shareholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to shall be bound by all actions taken by the Shareholders’ Representative in connection its capacity thereof, except for any action that conflicts with the limitations set forth in Section 7.4.4 below. The Shareholders’ Representative shall at all times act in its services under this Agreement, the Escrow Agreement and capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative Engagement Agreement (such believes to be in the best interest of the Senior Preferred Shareholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor any of its membersagents or employees, managersif any, directorsshall be liable to any person for any error of judgment, officersor any action taken, contractorssuffered or omitted to be taken under this Agreement or the Escrow Agreement, agents except in the case of its gross negligence or bad faith. The Shareholders’ Representative may consult with legal counsel, independent public accountants and employees nor other experts selected by him, her or it, as the case may be and shall not be liable for any member action taken or omitted to be taken based on any such consultation, advice or guidance. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the Advisory Group terms, covenants or conditions of this Agreement or the Escrow Agreement.
7.4.3 Each Company Shareholder on whose behalf cash was contributed to the Escrow Account shall, severally and not jointly, hold harmless and reimburse the Shareholders’ Representative from and against such Company Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative) suffered or incurred by the Shareholders’ Representative (collectively, the “Shareholders’ Representative GroupReimbursable Expenses”), shall be liable for ) arising out of or resulting from any act done action taken or omitted hereunder, under the Escrow Agreement or under to be taken by the Shareholders’ Representative Engagement under this Agreement while acting 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 or bad faith; provided, however, that no such Company Shareholder shall be liable in good faith and in excess of such Company Shareholder’s pro rata portion of the exercise of reasonable business judgmentAggregate Merger Consideration. The Shareholders shall indemnify, defend and hold harmless Shareholders’ Representative may withdraw funds from the Shareholders’ Representative Group from and against any and all lossesAGREEMENT AND PLAN OF MERGER PAGE 42 Escrow Account to pay Reimbursable Expenses. In addition, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Shareholders’ Representative Expenses”) incurred without gross negligence or willful misconduct on the part of if the Shareholders’ Representative and arising out of or Escrow Amount has been fully depleted, in connection with the acceptance or administration of its duties hereunder, under event there are any remaining funds in the Escrow Agreement or under Account to be distributed to shareholders of Company immediately prior to the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered directly final distribution from the Shareholders. The Shareholders 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 Escrow Account pursuant to this Agreement, the Escrow Agreement, the Shareholders’ Representative Engagement shall be entitled to recover any such expenses from the Escrow Account prior to the distribution of funds to the Company Shareholders. The Shareholders’ Representative shall not be entitled to any compensation for his, her or its services in such capacity other than the amount to be paid to Shareholders’ Representative by the Company at Closing in accordance with the terms of a Shareholder Representative Agreement executed on or about the date hereof or the transactions contemplated hereby Closing Date.
7.4.4 Notwithstanding anything to the contrary herein or thereby. Furthermorein the Escrow Agreement, 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 Shareholders’ Representative shall not be required in any manner exercise, or seek to take exercise, any action voting power whatsoever with respect to shares of capital stock of the Company or Trintech, Inc. now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative has been provided with funds, security or indemnities which, is expressly authorized to do so in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred a writing signed by the Shareholders’ Representative in performing such actions. A decision, act, consent or instruction of the Shareholders’ Representative under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement are waived. The powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of his, her or its interest in the Escrow Fund or the Company Earn-out Shares. The Shareholders’ Representative shall be entitled to: (i) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Shareholder or other partyShareholder.
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