Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a). (b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement. (c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims. (d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Each Shareholder irrevocably appointsauthorizes, authorizes directs and directs Xxxxxx X. Xxxxxxx appoints S. Xxxx Xxxx (the “Shareholders’ Representative”) to act as such Shareholder's sole and exclusive agent, representative, proxy and attorney-in-fact and representative of such Person and such Person’s heirs, representatives and successors to (in his capacity as Shareholders' Representativei) after the Closing Date take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf account of the Shareholders, and making any and all determinations that may be required or permitted to take all actions, and to exercise such rights, power and authority, be taken by the Shareholders in connection with this Agreement, including without limitation, all decisions relating to (A) the transactions defense, settlement, or both of any Claims for which a QuadraMed Indemnitee may claim to be entitled to indemnification under this Article XI, (B) the Escrow Agreement, (C) the amendment or termination of this Agreement, and (D) any adjustment to the Merger Consideration contemplated hereby by Section 2.3; and thereby and to (ii) exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby foregoing. Any actions, exercises of rights, power or thereby, to conduct authority and any decisions or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate determinations made by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' ’ Representative shall be conclusive absolutely and irrevocably binding upon the Shareholders. The Shareholders' Representative shall have all on each Shareholder as if each such incidental powers as may be necessary Person personally had taken such action, exercised such rights, power or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him authority or made such decision or determination in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each Person’s individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)capacity.
(b) Subject With respect to the provisions of matters covered by or related to this Section 10.15(b)Agreement, (i) each Shareholder irrevocably relinquishes its right to act independently and other than through the Shareholders' ’ Representative shall serve as with respect to such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior subject matter (except with respect to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor Shareholders’ Representative), (ii) no Shareholder shall have any right to institute any suit, action or proceeding against Tempus, QuadraMed, the Company or the Surviving Company or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Shareholders’ Representative who may act on their behalf, (iii) each Shareholder shall be deemed to have waived any claims such Shareholder may have or assert, including those that may arise in the future, against the Shareholders’ Representative for any action or inaction taken or not taken by the Shareholders’ Representative in connection herewith, except such action or inaction as may result from the willful misconduct or gross negligence of the Shareholders’ Representative, and (iv) the Shareholders hereby severally agree to indemnify the Shareholders’ Representative against, and hold him harmless from, any and all expenses, including, without limitation, attorneys’ fees and court costs, losses, costs, arbitration, tax liability and loss on investments suffered or incurred in connection with or arising from or out of this Agreement, except such acts or omissions as may result from the willful misconduct or gross negligence of the Shareholders’ Representative. Without limiting the generality of the foregoing, any notice hereunder delivered to QuadraMed or a QuadraMed Indemnitee by a Shareholder other than through the Shareholders’ Representative shall be of no effect, and each notice delivered by QuadraMed or any other QuadraMed Indemnitee to the Shareholders’ Representative shall be effective unless such successor agrees in writing as against each Shareholder; provided, that QuadraMed and the other QuadraMed Indemnitees may elect at their sole discretion to be bound give effect to any notice delivered by the terms of this Agreementany Shareholder.
(c) The Shareholders' ’ Representative shall be allowed further access may resign at any time upon thirty (30) days notice by submitting a written resignation to and permitted QuadraMed, with copies to review all other Shareholders at their addresses on the Surviving Entity's stock books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this AgreementTempus. In particularthe event of the death, notwithstanding in any case any notice received by Parent physical or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations mental incapacity or resignation of the Shareholders' Representative ’ Representative, the Shareholders shall promptly (and in any event within thirty (ii30) to assume that all actions, decisions and determinations days of the notice of such event) appoint a successor Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Quadramed Corp)
Shareholders’ Representative. (a) By the execution and delivery of executing this Agreement, subject to the terms of Section 10.15(b), each Shareholder hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoints the Shareholders’ Representative as such Shareholder's agent, representative, proxy Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative pursuant to this Agreement or the Escrow Agreement, including
(i) give and receive notices and communications;
(ii) authorize delivery to the Parent of Escrow Shares in his capacity as Shareholders' Representativesatisfaction of claims for indemnification made by the Parent pursuant to ARTICLE VI and ARTICLE VIII;
(iii) after agree to, negotiate, and enter into settlements and compromises in respect of, and comply with orders or handle any other matters described in, Section 2.16, ARTICLE VI, or ARTICLE VIII;
(iv) litigate, arbitrate, resolve, settle, or compromise any claim for indemnification pursuant to ARTICLE VI or ARTICLE VIII;
(v) execute and deliver all documents necessary or desirable to carry out the Closing Date for intent of this Agreement and the purpose of effecting the consummation of the transactions Escrow Agreement;
(vi) make all elections or decisions contemplated by this Agreement and the Transaction DocumentsEscrow Agreement to be made by the Shareholders;
(vii) engage, employ, or appoint any agents or representatives (including attorneys, accountants, and exercising, on behalf of consultants) to assist the Shareholders’ Representative in complying with his duties and obligations; and
(viii) take all Shareholders, actions necessary or appropriate in the rights and powers good faith judgment of the Shareholders hereunder and thereunder. Without limiting Shareholders’ Representative for the generality accomplishment of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from each of the Shareholders. Further, each Shareholder acknowledges that such Shareholder has specifically authorized the Shareholders’ Representative to accept service of process, summons, complaint, subpoena, or initiation of other legal action related to this Agreement on behalf of such Shareholder. The Shareholders’ Representative acknowledges that he will accept such service of process, summons, complaint, subpoena, or initiation of other legal action on behalf of each Shareholder. Any decision or action by the Shareholders’ Representative hereunder, including any agreement between the Shareholders’ Representative and the Parent relating to the defense, payment, or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and shall be final, binding, and conclusive upon each such Shareholder. No Shareholder shall have the right to object to, dissent from, protest, or otherwise contest the same. The provisions of this Section 10.15(b)Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest, and shall not be terminated by any act of any one or Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representativeby operation of Law, his successor shall promptly be appointed whether by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementdeath or other event.
(c) The Shareholders shall indemnify and hold harmless the Shareholders' ’ Representative shall be allowed further access to from and permitted to review against any Losses, Liability or expense (including the Surviving Entity's books and records during normal business hours and make copies reasonably required hiring of (i) the working papers of Parent legal counsel and the Surviving Entity relating to incurring of legal fees and costs) incurred without gross negligence or willful misconduct on the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations part of the Shareholders' ’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder; provided, that in no event shall the indemnification obligation of any Shareholder exceed the Merger Consideration actually received by or due to such Shareholder hereunder. The Shareholders agree that any out-of-pocket costs and expenses incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of this Agreement (iiincluding the hiring of legal counsel and the incurring of legal fees and costs) to assume that all actions, decisions and determinations shall be the responsibility of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxShareholders based on their Pro Rata Shares.
Appears in 1 contract
Samples: Merger Agreement (nFusz, Inc.)
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Each Shareholder irrevocably appoints, authorizes and directs appoints Xxxxxx X. Xxxxxxx to act Xxxxxxxx (“Shareholders Representative”) as such Shareholder's agent, representative, proxy and ’s attorney-in-fact (and agent, with full power of substitution to act in his capacity the name, place and stead of such Shareholder with respect to the delivery of such Shareholder’s Shares to Parent in accordance with the terms and conditions of this Agreement and to act on behalf of such Shareholder in any litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation such Shareholders Representative shall deem necessary or appropriate in connection with any of the above transactions contemplated under this Agreement. Including, without limitation:
(i) To take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Shareholders to consummate the Merger and the other transactions contemplated by this Agreement Agreement;
(ii) To receive, hold and deliver to Parent, the Transaction Documents, Company Stock Certificates accompanied by executed Letters of Transmittal and exercising, any other documents relating thereto on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to Shareholder;
(iii) To execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other deliver all ancillary agreements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments, and other documents required or waivers relating permitted to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder be given in connection with the consummation of the Merger and the other transactions contemplated by this Agreement;
(iv) To receive funds and give receipt for funds including in respect of the Aggregate Merger Consideration, and any adjustments thereto, to distribute to Shareholders their respective share of the Aggregate Merger Consideration, and any adjustments thereto, and to withhold from such funds a contingency reserve for the matters referred to herein;
(v) To give and receive all notices and communications to be given or received under this Agreement and to settle all such Claims on behalf receive service of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and process in connection with any Claim against or claims under this Agreement, including service of process in connection with arbitration; and
(vi) To take all actions which under this Agreement may be taken by the Shareholders under Representative and to do or refrain from doing any further act or deed on behalf of each Shareholder which Shareholders Representative deems necessary or appropriate in his sole and absolute discretion relating to the subject matter of this AgreementAgreement as fully and completely as such Shareholder could do if personally present.
(b) If Xxxxxx X. Xxxxxxxx dies or otherwise becomes incapacitated and unable to serve as Shareholders Representative, Xxxxxx X. XxXxxxxxx shall become Shareholders Representative. The death or incapacity of any Shareholder shall not terminate the agency and power of attorney hereby granted to the Shareholders Representative. The appointment and agency of the Shareholders' Shareholders Representative is irrevocable, shall be deemed coupled with an interest and shall be deemed to be coupled with an interest. Execution irrevocable and Parent and any other person may conclusively and absolutely rely, without inquiry, upon any action of this Agreement by Shareholders Representative, as the action of the Shareholders shall constitute agreement in all matters referred to be bound by the actions herein. All actions, decisions and instructions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion and no Shareholder shall have any cause of the aggregate Gross Closing Consideration. Under this Section 10.15(a)action against Shareholders Representative in his role as such, however, the Shareholders' Representative shall not have the right except for any action or obligation to, and shall not, represent any Shareholder omission made fraudulently or in Indemnification Claims involving any bad faith with respect to such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' All reasonable out-of-pocket expenses and fees (including fees payable to counsel and other professionals including brokerage fees) incurred by Shareholders Representative in connection with performing such function and in connection with the Merger and the other transactions contemplated hereby and all payments, damages, costs, fees and expenses in connection with any claim by or other dispute with Parent or the Surviving Company under this Agreement shall be allowed further access paid by Shareholders in proportion to their respective interests in the Shares and permitted may be deducted by Shareholders Representative from any amounts otherwise payable to review the Surviving Entity's books any Shareholder hereunder. Shareholder’s Representative may withhold from funds received on behalf of Shareholders prior to distribution of such funds to Shareholders any amount which Shareholders Representative deems necessary as a reserve for any such fees, expenses and records during normal business hours claims, and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating as a reserve for any potential decrease to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any ClaimsAggregate Merger Consideration pursuant hereto.
(d) The provisions set forth in this Section 10.15 shall not impose Even though the Shareholders have joint and several obligations to Parent and Merger Sub hereunder, the Shareholders agree among themselves that any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity amounts to be paid to the contrary, Parent Shareholders under this Agreement following the Closing and any amounts owed by the Surviving Entity Shareholders under this Agreement following the Closing shall be fully protected paid to or borne by the Shareholders proportionately in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxaccordance with their Ownership Percentages.
Appears in 1 contract
Shareholders’ Representative. (a) By executing and delivering a Letter of Transmittal or by virtue of consummation of the execution and delivery of this Agreement, subject to the terms of Section 10.15(b)Xxxxxx Transaction, each Xxxxxx Shareholder hereby irrevocably appointsconstitutes and appoints GRHP Management, authorizes LLC as its true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and lawful attorney-in-fact and agent (in his capacity as the “Shareholders' ’ Representative”) after the Closing Date for the purpose with full power of effecting substitution 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 hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to this Agreement and disbursements thereof to the Transaction DocumentsXxxxxx Shareholders, as contemplated by this Agreement; (ii) receiving and exercisingforwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the Xxxxxx Shareholders, any and all consents, waivers and amendments deemed by the rights Shareholders’ Representative, in its reasonable and powers good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each Xxxxxx Shareholder relative to any amounts to be received by the Xxxxxx Shareholders hereunder under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and thereunder. Without limiting compromising, on behalf of each Xxxxxx Shareholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each Xxxxxx Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Xxxxxx Shareholder on the generality of one hand and the foregoingShareholders’ Representative on the other hand, provided that, in each case, the Shareholders' ’ Representative shall have full power not take any action adverse to any Xxxxxx Shareholder unless such action is also taken proportionately with respect to the others. The Shareholders’ Representative shall not agree to any amendment to this Agreement or waiver of its provisions that would
(i) result in any class of Xxxxxx Shares receiving less of the Transaction Consideration in proportion to any other class of Xxxxxx Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement on the date hereof), without the prior written consent of the holders of a majority of such affected class; (ii) result in any class of Xxxxxx Shares receiving more of the Transaction Consideration in proportion to any other class of Xxxxxx Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement on the date hereof), without the prior written consent of the holders of a majority of each other class; or (iii) result in the rights or obligations of any holder of Xxxxxx Shares being changed in a manner adverse and authoritydisproportionate with the other holders of Xxxxxx Shares, for and without the prior written consent of such holder.
(b) Each Xxxxxx Shareholder hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such Xxxxxx Shareholder, notwithstanding any dispute or disagreement among the Xxxxxx Shareholders, Subversive shall be entitled to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process rely on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that action taken by the Shareholders are permitted Shareholders’ Representative under this Agreement without any Liability to, or required obligation to do inquire of, any Xxxxxx Shareholder, notwithstanding any knowledge on the part of Subversive of any such dispute or exercise under Article IXdisagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative shall be binding upon all of the Xxxxxx Shareholders, and in connection with no Xxxxxx Shareholder shall have the right to object to, dissent from, protest or otherwise contest any Claim against such decision, action, consent or by the Shareholders under this Agreement. The appointment and agency of instruction; (iii) notice to the Shareholders' Representative is irrevocable’ Representative, and delivered in the manner provided in Section 8.03, shall be deemed to be notice to each Xxxxxx Shareholder for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder interest and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive irrevocable by such Xxxxxx Shareholder in any manner or for any reason; and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him (v) in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of event that the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right person or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting entity serving as the Shareholders' ’ Representative is terminated dies, becomes incapacitated, files for bankruptcy protection or replaced by the Shareholders or is otherwise becomes unable or unwilling to continue to serve as a representative of the Xxxxxx Shareholders' Representative, or otherwise ceases the holders of a majority of the Xxxxxx Common Shares and Xxxxxx Preferred Shares shall appoint a new Person to be the Shareholders' ’ Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Each Xxxxxx Shareholder hereby acknowledges and agrees that no Subversive Party shall have any Liability to any Xxxxxx Party with respect to, and the Xxxxxx Shareholders jointly and severally shall indemnify all Subversive Parties against, and agree to hold the Subversive Parties harmless from, any and all Losses incurred by such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders' ’ Representative shall be allowed further access or by any Xxxxxx Shareholder, or the designation, appointment or actions of the Shareholders’ Representative pursuant to and permitted the provisions hereof, including with respect to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of any (i) failure by the working papers Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of Parent and the Surviving Entity relating to the Earn Out any Xxxxxx Shareholder) or any Claims other actions taken by the Shareholders’ Representative, and (ii) any supporting schedulesreliance by the Subversive Parties on, supporting analyses and other supporting documentation relating to actions taken by the Earn Out Subversive Parties in reliance on, the instructions of, notice given by or any Claimsother action taken or omitted by the Shareholders’ Representative.
(d) The provisions Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), which shall be funded by Subversive at the Closing in an amount of $50,000. The Shareholders’ Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses or other obligations incurred by the Shareholders’ Representative acting in its capacity as such. The Xxxxxx Shareholders will not receive any interest or earnings on the Expenses Account and irrevocably transfer and assign to the 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 Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate form its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set forth aside by the Xxxxxx Shareholders at the time of Closing. The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. Without limiting the foregoing, each Xxxxxx Shareholder shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all costs, expenses (including the fees and expenses of its counsel), Losses or Liabilities (collectively, “Shareholders’ Representative Costs”) incurred by the Shareholders’ Representative arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Section 10.15 Agreement, in each case as such Shareholders’ Representative Cost is suffered or incurred; provided that, in the event that any such Shareholders’ Representative Cost 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 Xxxxxx Shareholders the amount of such indemnified Shareholders’ Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of its duties under this Agreement shall not impose any liability or be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the Xxxxxx Shareholders based on Parent or their respective Pro Rata Share. Notwithstanding anything to the Surviving Entity other than those explicitly set forth contrary in this Agreement, the Shareholders’ Representative shall be entitled and is hereby granted the right to set off and deduct any unpaid or non-reimbursed expenses and unsatisfied liabilities incurred by the Shareholders’ Representative in connection with the performance of its duties hereunder from (i) the Expense Fund or (ii) any Contingent Transaction Consideration at such time as any such amounts would otherwise be distributable to the Xxxxxx Shareholders, provided that, while this Section 8.14(d) allows the Shareholders’ Representative to be paid form the aforementioned sources of funds, this does not relieve the Xxxxxx Shareholders from their obligation to promptly pay the Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it under applicable Law. The Shareholders’ Representative may also from time to time submit invoices to the Xxxxxx Shareholders covering such Shareholders’ Representative Costs, which shall be paid by the Xxxxxx Shareholders promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any Xxxxxx Shareholder, subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such Xxxxxx Shareholder with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Shareholders’ Representative for such time as the Shareholders’ Representative shall determine in its sole discretion. If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the Xxxxxx Shareholders, such amount shall be distributed to the Xxxxxx Shareholders in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In particular, notwithstanding no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Xxxxxx Shareholders or otherwise. Notwithstanding anything in any case any notice received by Parent or the Surviving Entity this Agreement to the contrary, Parent and any restriction or limitations on liability or indemnification obligations of, or provisions limiting the Surviving Entity shall recourse against non-parties otherwise applicable to, the Xxxxxx Shareholders set forth elsewhere in this Agreement are not intended to be fully protected in relying upon and shall be entitled (i) applicable to rely upon actionsthe indemnities provided to the Shareholders’ Representative under this Section 8.14. The foregoing indemnities will survive the Closing, decisions and determinations the resignation or removal of the Shareholders' ’ Representative and (ii) to assume that all actions, decisions and determinations or the termination of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx'
Appears in 1 contract
Samples: Merger Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. (a) By Each Shareholder, by the execution approval and delivery adoption of this Agreement, subject to hereby irrevocably appoints the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Shareholders’ Representative to act as such Shareholder's agent, representative, proxy and attorney-in-attorney in fact (in his capacity as for such Shareholder, and authorizes the Shareholders' Representative) after ’ Representative with full power of substitution to execute the Closing Date for the purpose of effecting Escrow Agreement and to do any and all things that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement and the Transaction DocumentsShareholder Related Agreements, including (i) to take all action necessary to consummate the transactions contemplated by this Agreement and exercisingthe Escrow Agreement, or the defense and/or settlement of any claims for which the Shareholders may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Article VIII, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the Shareholder Related Agreements, (iii) to authorize delivery to the Purchaser of any Escrow Shares in satisfaction of indemnification claims by the Purchaser in accordance with Article VIII, (iv) to make decisions on behalf of the Company and the Shareholders and take any and all Shareholders, the rights and powers additional action as is contemplated to be taken by or on behalf of the Shareholders hereunder by the terms of this Agreement or the Escrow Agreement, including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims and thereunder. Without limiting Notices of Claims, (B) amendments to this Agreement, the generality of Escrow Agreement or the foregoingShareholder Related Agreements, and (C) the Estimated Closing Statement, the Final Closing Statement, the Estimated Net Debt, the Net Debt and the Net Debt Surplus; provided, however, that, in the event that a Shareholder may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Section 8.1(d), the Shareholders' ’ Representative shall coordinate the defense and/or settlement of any such claims with the applicable Shareholder.
(b) All decisions and actions by the Shareholders’ Representative, including without limitation (i) any agreement between the Shareholders’ Representative and the Purchaser relating to the defense or settlement of any claims for which the Shareholders may be required to indemnify the Purchaser pursuant to Article VIII, (ii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Estimated Net Debt, the Net Debt or the Net Debt Surplus, and (iii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Escrow Agreement or the determination of the Purchaser’s payment obligations under Section 1.4 or any other matter relating to Article I, shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Shareholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Shareholders for any act done or omitted pursuant to this Agreement as the Shareholders’ Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Shareholders shall severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss, liability or expense incurred without fraud or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties under this Agreement. The foregoing indemnification shall not be deemed exclusive of any other right or remedy to which the Shareholders’ Representative may be entitled apart from the provisions hereof.
(d) The Shareholders’ Representative shall have full power and authority, for and authority on behalf of the Shareholders, each Shareholder to take any and all actionsactions on behalf of, execute any and all instruments on behalf of, and to exercise such rightsexecute or waive any and all rights of, power the Shareholders under this Agreement, the Escrow Agreement and authoritythe Shareholder Related Agreements.
(e) By his, in connection with her or its approval of this Agreement and the transactions contemplated hereby by this Agreement, each Shareholder agrees, in addition to the foregoing, that:
(i) the Purchaser shall be entitled to rely conclusively on the instructions and thereby decisions of the Shareholders’ Representative as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to Article VIII, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims and to exercise such rightsNotices of Claims, power and authority as are incidental thereto, to represent (C) any Shareholder from and after the Closing, to give or receive any notices other actions required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any taken by the Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to ’ Representative under this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against Escrow Agreement and any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IXRelated Agreement, and in connection with no Shareholder shall have any Claim cause of action against or the Purchaser for any action taken by the Shareholders under this Agreement. The appointment and agency Purchaser in reliance upon the instructions or decisions of the Shareholders' Representative is irrevocable’ Representative;
(ii) all actions, decisions and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions instructions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' ’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative Company and all of the Shareholders and no Shareholder shall have all such incidental powers as may be necessary any cause of action against the Shareholders’ Representative for any action taken, decision made or desirable to carry into effect instruction given by the Shareholders’ Representative under this Agreement or the Escrow Agreement except for fraud or willful misconduct by the Shareholders’ Representative in connection with the matters described in this Article IX;
(iii) the provisions of this Section 10.15Article IX are independent and severable, including, at the expense of the Shareholders, to retain attorneys, accountants are irrevocable and other advisors to assist him in the performance of his duties hereunder. All such expenses coupled with an interest and shall be shared pro rata among all of enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under transactions contemplated by this Section 10.15(a), howeverAgreement, the Shareholders' Representative shall not have Escrow Agreement and the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IXRelated Agreements; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).and
(bf) Subject to the provisions of this Section 10.15(b)Article IX shall be binding upon the executors, heirs, legal Representatives, personal Representatives, successor trustees and successors of each Shareholder, and any reference in this Agreement or the Escrow Agreement to a Shareholder or the Shareholders shall mean and include the successors to the rights of the Shareholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(g) All of the indemnities, immunities and powers granted to the Shareholders' ’ Representative under this Agreement shall serve as such from and after survive the Closing Date until and any termination of this Agreement and the earlier of his removal or the completion of his obligations hereunderEscrow Agreement. The Shareholders' ’ Representative may be replaced has no duties or terminated at any time by obligations, and makes no warranties, express or implied, in each case, except those Shareholders holding a majority expressly set forth in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(ch) The Shareholders' ’ Representative shall be allowed further access to hereby accepts its appointment and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions designation set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particularArticle IX, notwithstanding in any case any notice received by Parent or the Surviving Entity subject to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxindemnification provisions stated herein.
Appears in 1 contract
Samples: Share Purchase Agreement (Sorrento Therapeutics, Inc.)
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder hereby irrevocably appoints, authorizes and directs Xxxxxx X. appoints Lincoln Xxxxxxx to act (the “Shareholders Representative”) as such Shareholder's agent, ’s representative, proxy and attorney-in-fact (and agent, with full power of substitution to act in his capacity the name, place and stead of such Shareholder with respect to the transfer of such Shareholder’s Shares to the Purchaser in accordance with the terms and provisions of this Agreement and to act on behalf of such Shareholder in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents or take any actions, as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation such Shareholder shall deem necessary or appropriate in conjunction with any of the transactions Transactions contemplated by this Agreement and Agreement, including the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, power:
(i) to take all actions, and to exercise such rights, power and authority, action necessary or desirable in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf waiver of any Shareholderscondition to the obligations of the Shareholders to consummate the Transactions contemplated by this Agreement;
(ii) to negotiate, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other deliver all ancillary agreements, statements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments and other documents required or waivers relating permitted to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder be given in connection with the consummation of the Transactions contemplated by this Agreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders Representative agrees to execute), whether required before or after the Closing Date;
(iii) to give and receive all notices and communications to be given or received under this Agreement and to settle receive service of process in connection with the any claims under this Agreement, including service of process in connection with arbitration; and
(iv) to take all such Claims actions which under this Agreement may be taken by the Shareholders and to do or refrain from doing any further act or deed on behalf of all the Shareholder which the Shareholders and exercise any and all rights that Representative deems necessary or appropriate in his sole discretion relating to the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under subject matter of this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree thatwhether arising prior to, as to all matters arising under this Agreement and the Transaction Documents on or after the Closing Date, the Shareholders' Representative shall act for as fully and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and completely as such Shareholder could do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)personally present.
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest appointment of the Company's shares immediately prior to the Closing. If the Person who Shareholders Representative hereunder is acting coupled with an interest and is irrevocable until such time as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling Purchase Price due and payable pursuant to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this AgreementAgreement has been paid in full and all claims asserted by, and disputes with, the Purchaser have been finally satisfied, waived or otherwise resolved or the time for bringing any such claims has expired.
(c) The Shareholders' Representative Purchaser shall be allowed further access not have any obligation to and permitted take any action sought by, or respond to review any communication from, any of the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) Shareholders except as communicated by the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) Shareholders Representative. The provisions set forth in of this Section 10.15 10.2 shall not in no way impose any liability or obligation obligations on Parent or the Surviving Entity other than those explicitly set forth in this AgreementPurchaser. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity Purchaser to the contrary, Parent and the Surviving Entity Purchaser (i) shall be fully protected in relying upon and upon, shall be entitled (i) to rely upon upon, and shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Shareholders Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Shareholders Representative are fully authorized and binding upon by all of the Shareholders' .
(d) Notwithstanding anything contained in this Agreement to the contrary, any Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the Shareholders under this Agreement, including claims for indemnification under Article VIII, may be asserted, brought, prosecuted or maintained only by the Shareholders Representative, and the Shareholders hereby irrevocably waive any right to enforce such rights in their own name. The Shareholders consent and agree that any Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the Purchaser under this Agreement, including claims for indemnification under Article VIII, may be asserted, brought, prosecuted or maintained by the Purchaser against the Shareholders by service of process on the Shareholders Representative and without the necessity of serving process on, or otherwise joining or naming as a defendant in such Action, any of the Shareholders. The Parties hereto For this purpose, each Shareholder hereby irrevocably stipulates and agrees that the Shareholders Representative is a proper party defendant to represent its interests in any such proceeding and to appear on its behalf for all purposes therein, and that service of process upon the Shareholders Representative shall be effective to bind such Shareholders for all purposes of any such proceeding. Each Shareholder hereby irrevocably waives any and all rights it may have caused this Agreement and Plan to object to jurisdiction or venue in any proceeding in which service of Merger process is served upon the Shareholders Representative on such Shareholder’s behalf. With respect to be executed as any of the date first written above. NATIONAL TECHNICAL SYSTEMSforegoing, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIESthe Shareholders shall be bound by any determination in favor of or against the Shareholders Representative or the terms of any settlement or release to which the Shareholders Representative shall become a party, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxincluding any confession of judgment or other stipulation or settlement granted or entered into by the Shareholders Representative on their behalf.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of the execution and delivery approval of this Agreement, subject to Agreement by the terms shareholders of Section 10.15(b)the Company, each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Company Equity Holder hereby appoints DVT Holdings Limited to act as such Shareholder's agent, representative, proxy and the attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, agent for and on behalf of the Company Equity Holders (the "Shareholders, ' Representative") with respect to take the taking of any and all actions, actions and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent making of any Shareholder from and after the Closing, to give or receive any notices decisions required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any taken by the Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with ' Representative under this Agreement and the Escrow Agreement, including, without limitation, the power to (i) arbitrate, resolve, settle or compromise any dispute regarding indemnification claims or matters arising out of this Agreement and (ii) take all such Claims on behalf of all actions necessary in the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency judgment of the Shareholders' Representative is irrevocable, and shall be deemed for the accomplishment of the foregoing. Notices to be coupled with an interest. Execution of this Agreement by or from the Shareholders Shareholders' Representative shall constitute agreement notice to be bound by the actions or from each Company Equity Holder. A decision, act, consent or instruction of the Shareholders' Representative taken hereunder in connection with any of the foregoing matters shall constitute a decision of all of the Company Equity Holders and thereundershall be final, binding and conclusive upon each of the Company Equity Holders, and Parent and the Surviving Corporation may rely upon any such written decision, consent or instruction of the Shareholders' Representative as being the decision, consent or instruction of each and every Company Equity Holder. The Parties agree thatEscrow Agent, as to all matters arising under this Agreement Parent and the Transaction Documents after Surviving Corporation are hereby relieved from any liability to any Person for the Closing Dateacts done by them in accordance with such decision, consent or instruction of the Shareholders' Representative. In performing the functions specified in this Agreement, the Shareholders' Representative shall act for and will not be liable to any Company Equity Holder in the absence of fraud or willful misconduct on behalf the part of the Shareholders' Representative, and any act done or omitted pursuant to the extent Shareholders are asked to execute documents and to take other actions after advice of counsel shall be conclusive evidence of the Closing and do not do so as promptly as possible when requested, the Shareholders appoint Shareholders' Representative's good faith. If the Shareholders' Representative shall resign or become unable to fulfill its duties as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholderssuch, such determination, action or event of then the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable entitled to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, appoint its replacement and shall not, represent any Shareholder in Indemnification Claims involving any promptly notify the Escrow Agent and Parent of such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)appointment.
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (Cognex Corp)
Shareholders’ Representative. (a) By In order to administer efficiently the execution and delivery transactions contemplated hereby, including (i) the waiver of this Agreement, subject any condition to the terms obligations of the Shareholders to consummate the transactions contemplated hereby, (ii) the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Escrow Fund (as defined in Section 8.2(a) below), and (iii) the preparation of all documentation and conduct of all matters relating to the Tax Returns (as defined in Section 4.13 below) and computations of the Company and the Subsidiary pursuant to the provisions of Section 10.15(b6.11 below, the Shareholders hereby designate Xxxxxxx Xxxxxxx as their representative (the "Shareholders' Representative"), each .
(b) Each Shareholder irrevocably appoints, authorizes agrees that such Shareholder grants the Shareholders' Representative full power and directs Xxxxxx X. Xxxxxxx authority to act as such Shareholder's agent, representative, proxy agent and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authorityeach Shareholder, for and on behalf of the Shareholders, (i) to take all actions, and to exercise such rights, power and authority, action necessary in connection with the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby and thereby and to exercise such rightshereby, power and authority as are incidental theretoor the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Escrow Fund, to represent any Shareholder from and after the Closing, (ii) to give or and receive any all notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or received by the Shareholders under this Agreement or the Escrow Agreement. , (iii) to authorize delivery to Purchaser of shares of Purchaser Common from the Escrow Fund in satisfaction of claims by Purchaser, to object to such deliveries, to agree to negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and (iv) to take any and all additional action necessary or appropriate in the judgment of the Shareholders' Representative for the accomplishment of the 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 appointment and agency of the Shareholders' Representative is irrevocablemay be changed by the Shareholders from time to time upon not less than 30 days' prior written notice to Purchaser; provided that the Shareholders' Representative may not be removed unless holders of at least two-thirds in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Shareholders holding, prior to Closing, a majority in interest of the Escrow Fund shall select another representative to fill such vacancy and such substituted representative shall be deemed to be coupled with an interest. Execution the Shareholders' Representative for all purposes of this Agreement by and the Shareholders documents delivered pursuant hereto. No bond shall constitute agreement to be bound by required of the actions Shareholders' Representative, and 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 taken hereunder to voluntarily resign from such position at any time, and thereunder. The Parties agree thatany such resignation shall be done without any liability to the Shareholders' Representative.
(d) All decisions and actions by the Shareholders' Representative, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, 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 Escrow Fund, shall act for and on behalf be binding upon all of the ShareholdersShareholders and no Shareholder shall have the right to 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 to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint decisions of the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and the settlement of any claims for indemnification of Purchaser and/or the Company pursuant to take all such the Escrow Agreement or Article VIII below or any other actions deemed necessary required or appropriate permitted to be taken by the Shareholders' Representative which hereunder, and no party hereunder shall have any cause of action against Purchaser to the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides extent that a determination or any other action or event is conclusive and binding Purchaser has relied upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, such determination, action or event 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. The ' 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 shall constitute notice to or from each of the Shareholders for 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 remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) remedies available at law for any breach of the provisions of this Section 1.7 are inadequate; therefore, Purchaser and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Purchaser or the Company brings an action to enforce the provisions of this Section 1.7.
(vi) as between such Shareholder and the other Shareholders, the Shareholders' Representative shall have full power to determine all such incidental powers as may be necessary or desirable questions and doubts arising in relation to carry into effect any of the provisions of this Section 10.15, including, at Agreement and every such determination made in good faith shall be conclusive and binding on the expense of Shareholders and the Shareholders' Representative may act on the opinion or advice of or information obtained from any solicitor, to retain attorneysattorney, accountants banker, broker, accountant or other expert and other advisors to assist him in the performance of his duties hereunder. All shall not be responsible for any loss occasioned by so acting;
(vii) such expenses shall be shared pro rata among 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 based upon each Shareholder's portion or any of them under this Agreement;
(viii) in performing the aggregate Gross Closing Consideration. Under functions specified in this Section 10.15(a), howeverAgreement and the Escrow Agreement, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent be liable to any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IXthe absence of willful misconduct on the part of the Shareholders' Representative; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).and
(bix) Subject to the provisions of this Section 10.15(b1.7 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 shall be paid out of amounts remaining in the Escrow Fund after satisfaction of all claims of Purchaser against such fund. Upon application by the Shareholders' Representative to the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Escrow Fund, Purchaser may in its sole and absolute discretion authorize the Escrow Agent to release a portion of the Escrow Fund to the Shareholders' Representative in reimbursement of fees and expenses incurred prior to such time. In making such payment, any shares of Purchaser Common to be distributed from the Escrow Fund shall be valued at the closing price of the Purchaser Common on the Nasdaq National Market on the day of distribution. Nothing in this Section 1.7(f) shall limit the obligations of the Shareholders under Section 1.7(e)(vii). In carrying out his functions under this Agreement, the Shareholders' Representative shall serve as such be permitted, in his discretion, to solicit from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest each of the CompanyShareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any necessary or appropriate act hereunder, and each Shareholder, consistent with such Shareholder's shares immediately prior obligations pursuant to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' RepresentativeSection 1.7(e)(vii) above, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after comply with such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementrequest.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Share Purchase Agreement (Incyte Pharmaceuticals Inc)
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation Each of the transactions contemplated Sellers hereby appoints the Shareholders’ Representative as its representative in respect of all matters arising under this Agreement or the Transactions, and the Shareholders’ Representative is and shall be authorized by each Seller to act, or refrain from acting, with respect to any actions to be taken by or on behalf of any Seller or the Shareholders’ Representative, including to enforce any rights granted to any Seller hereunder, in each case as the Shareholders’ Representative believes is necessary or appropriate under this Agreement and the Transaction DocumentsAncillary Agreements, for and exercising, on behalf of the Sellers. The Sellers shall be bound by all such actions taken by the Shareholders’ Representative and no Seller shall be permitted to take any such actions. The Shareholders’ Representative shall not be liable to the Sellers for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Shareholders’ Representative of the Shareholders’ Representative’s duties or the exercise by the Shareholders’ Representative of the Shareholders’ Representative’s rights and powers remedies under this Agreement or any Transaction Agreement, except in the case of its bad faith or willful misconduct. No bond shall be required of the Shareholders hereunder Shareholders’ Representative. The Shareholders’ Representative may consult with legal counsel, independent public accountants and thereunderother experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The 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 or any Ancillary Agreement. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have the full power and authority, for authority to interpret all the terms and on behalf provisions of this Agreement and the Shareholders, to take all actionsAncillary Agreements, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and consent to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give waiver or receive any notices required amendment hereof or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims thereof on behalf of all Sellers and their respective successors, unless such waiver or amendment will be disproportionately adverse to a Seller relative to another Seller, in which case any such waiver or amendment shall require the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency consent of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree such Seller; provided that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' ’ Representative shall not have the right authority to consent to any waiver or obligation toamendment on behalf of Highlander with respect to Section 7.02(e). Purchaser shall be entitled to rely on all statements, representations, decisions of, and shall notactions taken or omitted to be taken by, represent the Shareholders’ Representative relating to this Agreement or any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Ancillary Agreement.
(b) Subject to The Sellers will indemnify and hold harmless the provisions Shareholders’ Representative from and against any and all costs or expenses (including reasonable legal fees and disbursements), judgments, fines, losses, damages, taxes or liabilities (“Losses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Section 10.15(b)Agreement and the Ancillary Agreements, in each case as such Loss is suffered or incurred; provided that in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders' ’ Representative shall serve as will reimburse the Sellers the amount of such from and after indemnified Loss to the Closing Date until the earlier of his removal extent attributable to such gross negligence or the completion of his obligations hereunderwillful misconduct. The Shareholders' ’ Representative may shall be replaced or terminated at any time entitled to reimbursement by those Shareholders holding the Sellers on a majority pro rata basis 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 in interest such capacity. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Company's shares immediately prior to Sellers or otherwise. The Sellers acknowledge and agree that the Closing. If foregoing indemnities will survive the Person who is acting as resignation or removal of the Shareholders' ’ Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Business Combination Agreement (Magnum Opus Acquisition LTD)
Shareholders’ Representative. (a) By Without any further act of any Shareholder, the execution Shareholders’ Representative or any successor to such individual appointed pursuant to this Section is hereby irrevocably appointed as agent and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for each Shareholder with full power of substitution or resubstitution, solely for the purpose purposes set forth herein, such appointment being coupled with an interest and irrevocable. The Shareholders’ Representative will act as the representative of effecting each Shareholder, and is authorized to act on behalf of each Shareholder pursuant to this Agreement or the Escrow Agreement or in connection with any transaction contemplated herein or therein, including:
(i) to give and receive communications and notices, to execute, acknowledge, deliver, record and file all ancillary agreements, certificates and documents that the Shareholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by Transactions or related thereto;
(ii) to negotiate, agree to, and enter into settlements and compromises with respect to all matters herein or related thereto;
(iii) to waive any breach, right, failure, default or condition precedent under the Agreement;
(iv) to receive service of process in connection with any claims under this Agreement or any related document or instrument;
(v) to perform the obligations and exercise the rights of all Shareholders under this Section 6.11, as well as any other obligations or rights expressly allocated to the Shareholders’ Representative under this Agreement and any related document or instrument, including the Transaction Documentssettlement of claims and disputes with the Parent or its Affiliates; Agreement and Plan of Merger
(vi) to instruct the Escrow Agent, and exercising, on behalf of all Shareholders, upon the rights and powers terms of the Shareholders hereunder and thereunder. Without limiting the generality Escrow Agreement, to distribute any Escrow Shares to any indemnified party in respect of the foregoing, Losses for which such indemnified party is believed by the Shareholders' ’ Representative shall have full power and authority, for and on behalf of the Shareholdersto be entitled to indemnification under this Agreement, to take all actionsdistribute any Escrow Shares to Parent pursuant to Section 1.5, and to exercise such rights, power and authority, in connection with release any Escrow Shares to the transactions contemplated hereby and thereby and Shareholders pursuant to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, terms of the Escrow Agreement;
(vii) to accept service of process on behalf of the Shareholders.
(viii) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative to accomplish the foregoing. Each Shareholder will be bound by all actions taken by the Shareholders’ Representative in its capacity thereas. The Shareholders’ Representative will, in a reasonably prompt manner, provide written notice to each Shareholder of any action taken by the Shareholders, ’ Representative pursuant to execute and deliverthe authority delegated to the Shareholders’ Representative under this Section. The Shareholders’ Representative will at all times act in its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interest of the Shareholders taken as a whole. Neither the Shareholders’ Representative nor any of its agents or employees will be liable to any Person for any error of judgment, or hold any action taken, suffered or omitted to be taken, under this Agreement, except in escrow the case of bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and releaseother experts selected by it and will not be liable for any action taken or omitted to be taken in good faith by the Shareholders’ Representative in accordance with the advice of such counsel, accountants or experts. As to any exhibits or amendments to matters not expressly provided for in this Agreement, the Transaction Documents Shareholders’ Representative will not be required to exercise any discretion or take any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to action. Each Shareholder will indemnify and hold harmless and reimburse the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense Shareholders’ Representative from and against such Shareholder’s Pro Rata Share of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted Liabilities, losses, damages, claims, costs, or required to do expenses suffered or exercise under Article IX, and in connection with any Claim against or incurred by the Shareholders Shareholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholders’ Representative under this Agreement, other than such Liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s bad faith or willful misconduct. The appointment In all matters relating to this Section, the Shareholders’ Representative will be the only party entitled to assert the rights of the Company or, post-Closing, the Shareholders. Parent will be entitled to rely on all statements, actions, representations and agency decisions of the Shareholders' ’ Representative is irrevocableas being the binding acts of all Shareholders or any of them, and shall be deemed notwithstanding any communication from any Shareholder to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions contrary (other than communication regarding termination or replacement of the Shareholders' ’ Representative taken hereunder and thereunderpursuant to this Section). The Parties agree that, as to all matters arising under this Agreement and Except for a notice regarding the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf change of the Shareholders’ Representative or with respect to dissenters’ rights, Parent and the Surviving Company shall be entitled to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint disregard any notices or communications given or made by any Shareholder unless given or made through the Shareholders' ’ Representative.
(b) The Shareholders’ Representative as their limited irrevocable attorney in fact may resign upon thirty (30) days’ prior written notice to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' ’ Representative shall have all such incidental powers as may be necessary changed or desirable replaced by vote of a majority of the Shareholders (computed on the basis of their respective interests in the Consideration, assuming that all of the Contingent Consideration is paid to carry into effect the provisions of this Section 10.15, including, at Shareholders) upon written notice to the expense Shareholders’ Representative. Any vacancy in the position of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' ’ Representative may be replaced or terminated at any time filled by those Shareholders holding approval of the holders of a majority in interest of the Company's shares immediately prior to the ClosingContingent Consideration. If the Person who is acting as No bond will be required of the Shareholders' Representative is terminated ’ Representative. Notices or replaced by the Shareholders communications to or is unable or unwilling to continue to serve as from the Shareholders' Representative, ’ Representative will constitute notice to or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementeach Shareholder.
(c) The Shareholders' ’ Representative shall be allowed further access will have no power or authority to bind Parent, and permitted Parent will not have any Liability to review any Person for any act or omission by the Shareholders’ Representative. The Surviving Entity's books Company is hereby relieved from any liability to any Person for any acts done in accordance with such decision, act, consent or instruction of the Shareholders’ Representative. Agreement and records during normal business hours and make copies reasonably required Plan of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.Merger
(d) The provisions set forth in Notwithstanding any term herein, Parent’s obligation with respect to any payment to or for the benefit of any Shareholder under this Section 10.15 shall not impose any liability Agreement is to make such payment as the Shareholders’ Representative directs. If such payment is properly made, then Parent will have no other responsibility or obligation on Liability with respect thereto and Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall will be entitled (i) to rely upon actions, decisions conclusively and determinations of without independent verification on the payment directions provided by the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of executing this AgreementAgreement or a Shareholder Joinder, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of consummating the transactions contemplated by this Agreement Agreement, or participating in such transactions and receiving the Transaction Documentsbenefits thereof, including the right to receive the consideration payable in connection with such transactions, each Shareholder irrevocably authorizes and exercising, on behalf designates the Representative as the representative and agent of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actionssuch Shareholder, and to exercise as such rightsShareholder’s true and lawful attorney-in-fact, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, full power and authority as are incidental theretoin such Shareholder’s name, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of for all Claims against any Shareholder purposes in connection with this Agreement and to settle all such Claims any agreements ancillary hereto, including: (i) accepting notices on behalf of the Shareholders under this Agreement and any Transaction Document; (ii) providing any consent, certificate, instrument, receipt or approval on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree thatmaking, as to all matters arising enforcing or settling any claim under this Agreement and the Transaction Documents after the Closing DateArticles 1, the Shareholders' Representative shall act for and 5, 6, 7 on behalf of the Shareholders, ; and to the extent Shareholders are asked to execute documents (iii) taking any and to take all other actions after the Closing and do not do so as promptly as possible when requesteddoing any and all other things provided in, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When contemplated by, this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon to be performed by the Shareholders, such determination, action or event of Shareholder (to the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among extent all of the other Shareholders based upon each Shareholder's are also required to perform) arising out of the transactions contemplated hereby or thereby as Representative, in its sole discretion, determines to be necessary, appropriate or desirable. - 58 - Notwithstanding the foregoing sentence, Representative may not (x) increase any liability or obligation of a Shareholder under this Agreement or any Transaction Document without the prior written consent of such Shareholder or (y) take any action (including, without limitation, executing and delivering any consent, certificate, instrument, receipt, or approval) in respect of a Shareholder that discriminates against that Shareholder relative to the effect of such action on the other Shareholders unless the affected Shareholder gives his, her, their, or its prior written consent; provided that for the avoidance of doubt, the Representative consenting to all or a portion of an indemnification claim under Article 7, or entering into a settlement agreement with respect thereto, in accordance with the aggregate Gross Closing Consideration. Under procedures, limitations of liability and Representative authority set forth in this Section 10.15(a), however, the Shareholders' Representative Agreement shall not have be deemed to implicate the right foregoing clause (y) of the previous sentence or obligation torequire the prior written approval of such Shareholders pursuant to the previous sentence. The authorization of Representative is coupled with an interest and is in consideration of the mutual covenants in this Agreement and is irrevocable (unless a court of competent jurisdiction determines in a final, non-appealable judgment that Representative has engaged in willful misconduct or gross negligence in connection herewith, in which case that Shareholder may, upon written notice to Buyer and shall notRepresentative, represent any Shareholder in Indemnification Claims involving any such Shareholder's severalrevoke the appointment) and will not be terminated by operation of law, as opposed to his joint, liability under Article IX; in any circumstance where whether by the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless death or incapacity of any provisions of this Section 10.15(a)Shareholder.
(b) Subject to the provisions Representative shall act as joint agent for all of this Section 10.15(b), the Shareholders' , shall have the authority to bind each such Shareholder in accordance with this Agreement and any agreements ancillary hereto, and the Buyer may rely on such appointment and authority and on the actions taken, decisions made or instructions given by Representative shall serve as such from unless and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest Buyer receives written notice of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor chosen by the Shareholders, acting by two-thirds consent (determined based on the Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in accordance with Annex I), upon thirty (30) days’ prior written notice to the Buyer. The Representative may (i) resign at any time, or (ii) be removed by those Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in accordance with Annex I, in each case upon thirty (30) days’ prior written notice, whereupon the Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in accordance with Annex I shall appoint and designate a new Representative. Further, the Representative shall be effective unless automatically removed (the “Automatic Removal”) upon a final non-appealable determination by a court of competent jurisdiction or upon entry into a final binding settlement that the Representative has committed gross negligence, willful misconduct or fraud in any action taken hereunder or under its engagement letter. Notwithstanding the first sentence of this Section 9.9(b), in the event of Automatic Removal, the Shareholders who are to receive a majority of the Closing Merger Consideration as allocated in accordance with Annex I shall appoint and designate a new Representative.
(c) The Representative, in its capacity as the representative to the Shareholders and not in its capacity as a Shareholder of the Company, will incur no liability of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. Each Shareholder shall jointly and severally indemnify and hold harmless Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement (as the Representative only) and any agreements ancillary hereto, in each case as such successor agrees Representative Loss is suffered or incurred; provided, that in writing the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the 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 Representative by the Shareholders, any such Representative Losses may be recovered by the Representative from (i) any Earnout at such time as any amounts thereof would otherwise be distributable to the Shareholders; (ii) the Escrow Amount; and (iii) the Contingency Escrow, but only after and to the extent that any remaining amount otherwise becomes distributable to the Shareholders; provided, that while this section allows the Representative to be bound by paid from the terms aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Shareholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this Section 9.9(c). The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(cd) The Shareholders' Each Shareholder has authorized the Representative shall be allowed further access to and permitted direct the Escrow Agent to review distribute from time to time amounts from the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating Escrow Account any amounts owed to the Earn Out or any Claims Buyer once the definitive Closing Merger Consideration Certificate has been determined under Section 1.6 and (ii) any supporting schedules, supporting analyses all Disputed Items have been determined and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxsettled under Section
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery adoption or causing the adoption of this Agreement, subject to the approval of the principal terms of Section 10.15(b)the Transactions, and the consummation of the Transactions or participating in the Transactions and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Transactions, each Seller shall be deemed to have constituted, appointed and empowered effective from and after the date of such consent, Shareholder irrevocably appointsRepresentative Services LLC as the Shareholders’ Representative, authorizes for the benefit of the Sellers and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact (to act on behalf of each Seller, for all purposes in his capacity as Shareholders' Representative) after connection with and to facilitate the Closing Date for consummation of the purpose Transactions and the execution of effecting the Ancillary Agreements and the consummation of the transactions contemplated by thereby, which shall include the power and authority to: (i) enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the Transaction DocumentsTransactions, and exercising, on behalf of to take any and all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, actions which the Shareholders' ’ Representative shall have full power and authority, believes are necessary or appropriate under this Agreement for and on behalf of the ShareholdersSellers including, to take all actionsconsenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and to exercise their respective Representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert any Shareholder from and claim or institute any Action; (B) investigate, defend, contest or litigate any Third Party Claim pursuant to Section 9.5 or any other Action or investigation initiated by Buyer and, after the ClosingClosing Date, to give the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any or all Sellers in any such Action or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such Third Party Claim or amendments other Action 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 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; (ii) to refrain from enforcing any right of the Sellers arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the Transaction Documents part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or any 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; (iii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, statementsletters and other writings, noticesand, approvals, extensions or waivers relating to the transactions contemplated hereby or therebyin general, to conduct 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 cease to conduct the defense of all Claims against any Shareholder proper or convenient in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect out the provisions of this Section 10.15, including, at the expense of the Shareholders, Transactions; (iv) to retain attorneysengage special counsel, accountants and other advisors to assist him and incur such other expenses on behalf of the Sellers in the performance of his duties hereunder. All connection with any matter arising under this Agreement, which such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' ’ Representative shall not have is authorized to pay from the right Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions amendments of this Section 10.15(a)Agreement or the Ancillary Agreements.
(b) Subject The Shareholders’ Representative will incur no liability of any kind to any Seller with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the provisions advice of counsel, provided such action or omission is also not the result of the Shareholders’ Representative’s gross negligence or willful misconduct. The Sellers agree to indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Section 10.15(b)Agreement and any agreements ancillary hereto, 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 shall serve as will reimburse the Sellers the amount of such from and after indemnified Representative Loss to the Closing Date until extent attributable to such gross negligence or willful misconduct. If not paid directly to the earlier of his removal or Shareholders’ Representative by the completion of his obligations hereunder. The Shareholders' Sellers, any such Representative Losses may be replaced or terminated recovered by the Shareholders’ Representative from (i) the funds in the Expense Holdback Amount, and (ii) the Indemnity Escrow Amount at any such time by those Shareholders holding a majority in interest of the Company's shares immediately prior as remaining amounts would otherwise be distributable to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior Sellers pursuant to the Closingterms of this Agreement; provided, however, that while this Section 10.7(b) allows the Shareholders' ’ Representative to be paid from the aforementioned sources of funds, this Section 10.7(b) shall not voluntarily resign without relieve the Shareholders first selecting a successor Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders' ’ Representative (reasonably satisfactory from seeking any remedies available to Parent)it at Law or otherwise. Any successor In no event will the Shareholders’ Representative be required to a Shareholders' Representative shall for purposes advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders' ’ Representative under this Section 10.7(b).
(c) All of the indemnities, immunities and from and after such timepowers granted to the Shareholders’ Representative under this Agreement shall survive the Closing, the term "resignation or removal of the Shareholders' Representative" as used herein shall refer to ’ Representative and/or any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(cd) After the Closing Date, Buyer and the Company shall have the right to rely 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 Sellers.
(e) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the working papers death, incompetency, bankruptcy or liquidation of Parent and the Surviving Entity relating to the Earn Out or any Claims Seller and (ii) shall survive the consummation of the Transactions, and any supporting schedules, supporting analyses and other supporting documentation relating action taken by the Shareholders’ Representative pursuant to the Earn Out authority granted in this Agreement shall be effective and absolutely binding on each Seller notwithstanding any contrary action of or any Claimsdirection from such Seller, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(df) The provisions set forth Each of the Company and Buyer acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in this Section 10.15 connection with the consummation of the Transactions. Accordingly, each of the Company and Buyer acknowledges and agrees that, the Shareholders’ Representative shall have no Liability to, and shall not impose be liable for any liability Losses of, any of the Company or obligation on Parent or the Surviving Entity other than those explicitly set forth Buyer in this Agreement. In particular, notwithstanding in connection with any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations obligations of the Shareholders' ’ Representative under this Agreement or otherwise in respect of this Agreement or the Transactions, except to the extent such Losses shall be proven to be the direct result of willful misconduct by the Shareholders’ Representative in connection with the performance of its obligations hereunder.
(g) The Sellers will not receive any interest or earnings on the Expense Holdback Amount and (ii) irrevocably transfer and assign to assume the Shareholders’ Representative any ownership right that all actionsthey may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Holdback Amount other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, decisions will not use these funds for its operating expenses or any other corporate purposes and determinations will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Shareholders' Representative are fully authorized and binding upon ’ Representative’s responsibilities, the Shareholders' ’ Representative and will deliver any remaining balance of the Expense Holdback Amount in accordance with Section 2.8(b).
(h) The Shareholders’ Representative may resign upon twenty (20) days’ written notice delivered to Parent and, prior to the Closing, the Company. If the Shareholders. The Parties hereto have caused this Agreement and Plan ’ Representative shall resign or be removed by the Sellers, the Sellers shall (by consent of Merger those Sellers entitled to at least a majority of the Closing Payment hereunder), within ten (10) days after such resignation or removal, appoint a successor to be executed the Shareholders’ Representative for all purposes herein, and any such successor shall succeed the former Shareholders’ Representative as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxShareholders’ Representative hereunder.
Appears in 1 contract
Shareholders’ Representative. (a) By Each Shareholder by executing this Agreement and without any further action, irrevocably constitutes and appoints Xxxxxx Xxxx as the execution and delivery of this Agreement“Shareholders Representative”, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy ’s true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose and exclusive agent, with full power of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentssubstitution, and exercising, on behalf of all Shareholders, the rights and powers of authorizes the Shareholders hereunder Representative acting for such Shareholder and thereunder. Without limiting the generality of the foregoingin such Shareholder’s name, the Shareholders' Representative shall have full power place and authoritystead, for in any and on behalf of the Shareholdersall capacities to do and perform every act and thing required, permitted, necessary or desirable to take all actions, and to exercise such rights, power and authority, be done in connection with the transactions contemplated by this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby thereby, as fully to all intents and purposes as such Shareholder might or could do in person, including to:
(i) take any and all actions (including, without limitation, executing and delivering any documents or amendments, incurring any costs and expenses on behalf of the Shareholders) and make any and all determinations which may be required or permitted in connection with the implementation of this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(ii) give and receive notices and communications under this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with VIH, Holdco, Merger Sub, Target Company or their respective Affiliates arising out of or in respect of this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(iv) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby; and
(v) to make any other decision or election or exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby foregoing or therebythat is, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all opinion of the Shareholders based upon each Shareholder's portion of Representative, necessary or advisable to effectuate the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)foregoing.
(b) Subject Xxxxxx Xxxx hereby accepts appointment and authorization to act as the provisions Shareholders Representative as the attorney-in-fact and exclusive agent on behalf of the Shareholders in accordance with the terms of this Section 10.15(b), the Shareholders' Representative shall serve as such from Agreement. From and after the Closing Date until VIH Merger Effective Time, Holdco, the earlier of Surviving VIH Company and its Affiliates are entitled to deal exclusively with Xxxxxx Xxxx in his removal or capacity as Shareholders Representative on all matters relating to this Agreement and the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of Ancillary Documents and the Company's shares immediately prior transactions contemplated hereby and thereby to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by extent the Shareholders or is unable or unwilling Representative has authority to continue act on such matter pursuant to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Each of the Shareholders acknowledges and agrees that upon execution of this Agreement, upon any delivery by the Shareholders Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Shareholders Representative, such Shareholder shall be allowed further access bound by such documents as fully as if such Shareholder had executed and delivered such documents; provided that, any amendment to this Agreement materially and permitted to review adversely affecting the Surviving Entity's books rights of Shareholders (including amendments materially and records during normal business hours and make copies reasonably required of adversely affecting (i) the working papers percentage of Parent and Aggregate Share Consideration allocable to each Shareholder in connection with the Surviving Entity relating to consummation of the Earn Out transactions contemplated hereunder or any Claims and (ii) the economic or voting rights of Shareholders in Holdco following Closing, but other than any supporting schedulesdilution resulting from the issuance, supporting analyses and other supporting documentation relating to exercise, conversion or exchange of any Equity Interests of FinAccel) will require approval of the Earn Out or any ClaimsShareholders holding a majority of the voting power of the outstanding Equity Interests of the Target Company.
(d) Upon the death, disability or incapacity of the initial Shareholders Representative appointed pursuant to Section 13.18(a), each of the Shareholders acknowledges and agrees then such Person as is appointed by the Shareholders who held a majority of the voting power of the outstanding Equity Interests of the Target Company, voting as a single class, immediately prior to the Closing shall be the Shareholders Representative. The provisions Shareholders Representative may resign at any time; provided that it must provide the Shareholders who held a majority of the voting power of the Equity Interests of the Target Company immediately prior to Closing thirty (30) days’ prior written notice of such decision to resign. The Shareholders Representative shall not receive compensation for service in such capacity. The designation of any Person as the Shareholders Representative is and shall be coupled with an interest, and, except as set forth in this Section 10.15 13.18, such designation is irrevocable and shall not impose be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' .
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Shareholders Representative in connection herewith shall be absolutely and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and irrevocably binding upon the Shareholders' Shareholders as if such Person had taken or not taken such action, exercised such rights, power or authority or made such decision or determination in its own capacity, and VIH, Holdco and Merger Sub may rely upon such action, exercise of right, power, or authority or such decision or determination of the Shareholders Representative as the action, inaction, exercise, right, power, or authority, or decision or determination of such Person, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Each of VIH, Holdco and Merger Sub is hereby relieved from any liability to any Person for any acts done by the Shareholders Representative and the Shareholders. The Parties hereto have caused this Agreement any acts done by VIH, Holdco and Plan of Merger to be executed as Sub in accordance with any decision, act, consent or instruction of the Shareholders Representative.
(f) On the date first written abovehereof, each Shareholder has provided to the Shareholders Representative a duly executed copy of each signature page required for such Shareholder in connection with the Ancillary Documents. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxEach such signature page shall be released by the Shareholders Representative at the Closing without further authorization or action necessary on behalf of each Shareholder.
Appears in 1 contract
Samples: Business Combination Agreement (VPC Impact Acquisition Holdings II)
Shareholders’ Representative. (a) By In the execution event that the Merger is approved, effective upon such vote, and delivery without further act of this Agreementany stockholder of the Company, subject Xxxxxxxx and Xxxxx (hereinafter collectively referred to as the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act “Stockholders Representative”) shall be appointed as such Shareholder's agent, representative, proxy agent and attorney-in-fact by and for each person or entity (in his capacity as Shareholders' Representativeother than holders of Dissenting Shares) after the Closing Date for the purpose which owned beneficially or of effecting the consummation record any shares of the transactions contemplated Company Stock immediately prior to the Effective Time (hereinafter referred to as the “Holdback Beneficiaries”) to give and receive notices and communications, to authorize payments from the Holdback Shares in satisfaction of claims by this Agreement the Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and the Transaction Documentscompromises of, and exercisingdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate in the judgment of the Stockholders Representative for the accomplishment of the foregoing. Such agency may be changed by the Shareholders' Holdback Beneficiaries from time to time upon not less than thirty (30) days’ prior written notice to Purchaser; provided that the Stockholders Representative which shall have may not be removed unless Holdback Beneficiaries representing at least a two-thirds interest in the same force Holdback agree in writing to such removal and effect as if performed by to the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event identity of the Shareholders' Representative shall be conclusive and binding upon the Shareholderssubstituted Stockholders Representative. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him Any vacancy in the performance position of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Stockholders Representative may be replaced or terminated filled by approval in writing of the Holdback Beneficiaries representing at any time by those Shareholders holding least a majority in interest of the Company's shares immediately prior to the ClosingHoldback Shares. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to No bond shall be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest required of the Company's shares immediately prior Stockholders Representative. Notices or communications to or from the Closing; provided, however, that Stockholders Representative shall constitute notice to or from each of the Shareholders' Holdback Beneficiaries.
(b) The Stockholders Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall be liable for purposes of any act done or omitted under this Agreement be as Stockholders Representative while acting in good faith and in the Shareholders' exercise of reasonable judgment. The Holdback Beneficiaries shall jointly and severally indemnify the Stockholders Representative and from hold the Stockholders Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders Representative and after such timearising out of or in connection with the acceptance or administration of the Stockholders Representative’s duties under this Agreement, including the term "Shareholders' Representative" as used herein shall refer to reasonable fees and expenses of any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound legal counsel retained by the terms of this AgreementStockholders Representative.
(c) The Shareholders' A decision, act, consent or instruction of the Stockholders Representative shall constitute a decision of all the Holdback Beneficiaries and shall be allowed further access to final, binding and permitted to review conclusive upon each of the Surviving Entity's books Holdback Beneficiaries, and records during normal business hours and make copies reasonably required of (i) the working papers of Parent Purchaser and the Surviving Entity relating to Corporation (including the Earn Out Subsidiary) may rely upon any such written decision, consent or any Claims and (ii) any supporting schedulesinstruction of the Stockholders Representative as being the decision, supporting analyses and other supporting documentation relating to consent or instruction of each of the Earn Out or any Claims.
(d) Holdback Beneficiaries. The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent Purchaser and the Surviving Entity shall be fully protected Corporation (including the Subsidiary) are hereby relieved from any liability to any person or entity for any acts done by them in relying upon and shall be entitled (i) to rely upon actionsaccordance with such decision, decisions and determinations consent or instruction of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxStockholders Representative.
Appears in 1 contract
Samples: Merger Agreement (iVOW, Inc.)
Shareholders’ Representative. (a) By the execution and delivery of executing this Agreement, subject each of the Shareholders (notwithstanding any Shareholder's current or future mental or physical disability or incompetency) hereby irrevocably constitutes and appoints X.X. Xxxxx and his successors, acting as hereinafter provided, as his attorney-in- fact and agent in his name, place and xxxxx in connection with the transactions and agreements contemplated by this Agreement with respect to matters: (i) prior to the terms of Section 10.15(bClosing Date, as specified herein, and (ii) subsequent to the Closing Date (the "Shareholders' Representative"), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx acknowledges that such appointment is coupled with an interest. By executing this Agreement under the heading "Shareholders' Representative," X.X. Xxxxx hereby (i) accepts his appointment and authorization to act as such Shareholder's agent, representative, proxy and Shareholders' Representative as attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation and agent on behalf of the transactions contemplated Shareholders in accordance with the terms of this Agreement, and (ii) agrees to perform his obligations under, and otherwise comply with, this Section 12.10.
(b) Each Shareholder by this Agreement fully and completely hereby: (a) authorizes the Transaction DocumentsShareholders' Representative (i) to dispute or to refrain from disputing any claim made by Purchaser under this Agreement or the other Purchase Agreements, (ii) to negotiate and compromise any dispute which may arise under, and exercisingto exercise or refrain from exercising remedies available under this Agreement or the other Purchase Agreements and to sign any release or other document with respect to such dispute or remedy, on behalf of all Shareholders, the rights (iii) to give such instructions and powers of the Shareholders hereunder to do such other things and thereunder. Without limiting the generality of the foregoing, refrain from doing such other things as the Shareholders' Representative shall have full power and authority, for and on behalf deem necessary or appropriate to carry out the provisions of this Agreement or the Shareholders, other Purchase Agreements (iv) waive any condition to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, and (v) to give or receive any notices required or permitted agree in his discretion with the Purchaser to amend this Agreement; and (b) agrees to be given hereunder bound by all agreements and thereunder, to accept service of process on behalf of any determinations made by and documents executed and delivered by the Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with ' Representative under this Agreement and to settle all such Claims on behalf or the other Purchase Agreements.
(c) Each of all the Shareholders hereby expressly acknowledges and exercise any and all rights agrees that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocableauthorized to act on his behalf, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of notwithstanding any dispute or disagreement between the Shareholders, and that Purchaser and any other person or entity shall be entitled to the extent Shareholders are asked to execute documents rely on any and to take other all actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate taken by the Shareholders' Representative under this Agreement or the other Purchase Agreements without any liability to, or obligation to inquire of, any of the Shareholders. Purchaser and any other person or entity is hereby expressly authorized to rely on the genuineness of the signatures of both members of the Shareholders' Representative, and upon receipt of any writing which reasonably appears to have been signed by Shareholders' Representative, Purchaser and any other person or entity may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(d) If X.X. Xxxxx ceases to function in his capacity as the Shareholders' Representative for any reason whatsoever, then C. Xxxxxxx Xxxxxx shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that right to appoint a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event successor.
(e) The authorizations of the Shareholders' Representative shall be conclusive effective until his rights and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of obligations under this Section 10.15, including, at the expense Agreement terminate by virtue of the Shareholders, to retain attorneys, accountants termination of any and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all obligations of the Shareholders based upon each Shareholder's portion of to the aggregate Gross Closing Consideration. Under Purchaser under this Section 10.15(a), however, Agreement.
(f) Shareholders who execute this Agreement shall jointly and severally indemnify the Shareholders' Representative shall not have and his successor and assigns harmless from and against any and all claims, liabilities, losses, damages, fines, penalties and expenses, including out-of-pocket expenses and legal fees and expenses that may be imposed in connection with or arising out of the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), performance by the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representativeunder this Agreement, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, provided that the Shareholders' Representative shall has not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees acted with gross negligence or in writing to be bound by the terms of this Agreementbad faith or exhibited willful misconduct.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (Netzee Inc)
Shareholders’ Representative. (a) By In order to efficiently administer (i) the execution and delivery waiver of this Agreement, subject any condition to the terms obligations of Section 10.15(b)the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each Shareholder of the Sellers and each Owner hereby irrevocably appointsappoints and designates Xxxxxxxx Xxxxx as his, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy her or its representative and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a"REPRESENTATIVE").
(b) Subject The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the provisions obligations of this Section 10.15(b)any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier defense and/or settlement of his removal any claims for which any Seller or the completion of his obligations hereunder. The Shareholders' Representative Owner may be replaced required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or terminated at any time by those Shareholders holding a majority in interest on behalf of the Company's shares immediately prior to Sellers and the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound Owners by the terms of this Agreement.
(c) The Shareholders' In the event that the Representative shall dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be allowed further access to irrevocably appointed and permitted to review designated the Surviving Entity's books and records during normal business hours and make copies reasonably required Representative for all purposes of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsthis Agreement.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or All decisions and actions by the Surviving Entity other than those explicitly set forth in this Agreement. In particularRepresentative, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contraryincluding, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled without limitation, (i) to rely upon actions, decisions and determinations of any agreement between the Shareholders' Representative and the Purchaser or Xxxxxxx relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to assume that indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or Xxxxxxx will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or Xxxxxxx for any action taken by the Purchaser or Xxxxxxx in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and determinations instructions of the Shareholders' Representative are fully authorized will be conclusive and binding upon each of the Shareholders' Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Shareholders. The Parties hereto have caused this Agreement Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxdistribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of this AgreementThe Shareholders hereby irrevocably appoint Xxxxxxx X. Xxxxxx, subject Xx., a Shareholder, to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act serve as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf representative of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service date of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all (the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the "Shareholders' Representative is irrevocableRepresentative"). EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY- IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to rely, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the fully protected in relying, upon all actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunderRepresentative. The Shareholders' Representative may not be replaced or terminated at any time changed without the consent of Purchaser, except as provided in the next sentence. In the event of the death of the Shareholder' Representative, the Shareholders shall promptly irrevocably appoint by those Shareholders holding a majority in interest vote of the Company's shares Shareholders (based on stock ownership immediately prior to the Closing. If ) one of the Person remaining Shareholders (or beneficial owners of Shareholders that are entities) who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling a natural person to continue to serve act as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. (a) By Effective upon and by virtue of the execution vote of the holders of Company Stock approving and delivery adopting this Agreement and the Merger, and without any further act of this Agreementany of the holders of the Company Stock, subject to the terms Shareholders’ Representative shall be hereby appointed as the representative of Section 10.15(b), each Shareholder irrevocably appoints, authorizes the holders of Company Stock and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and the attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, agent for and on behalf of each holder of Company Stock solely with respect to (i) any claims by any Parent Indemnified Party against the Shareholders, to take all actions, Escrow Fund under Articles 2 and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service 10 of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise (ii) any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and amendments to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the ClosingEscrow Agreement; provided, however, that any amendment of the Escrow Agreement that shall adversely affect the rights or obligations of any shareholder under the Escrow Agreement (other than any change affecting all holders of Company Stock similarly) shall require the prior written consent of such adversely affected shareholder. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the authority to take any and all actions and make any decisions required or permitted to be taken by the Shareholders' ’ Representative shall not voluntarily resign without under the Shareholders first selecting a successor Shareholders' Representative Escrow Agreement and this Agreement, including the exercise of the power to (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes i) agree to, negotiate, enter into settlements and compromises of, commence any suit, action or proceeding, and comply with orders of this Agreement be courts with respect to, claims by any Parent Indemnified Party against the Shareholders' Representative Escrow Fund under Articles 2 and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms 10 of this Agreement, (ii) litigate, resolve, settle or compromise any dispute that may arise pursuant to Section 5 of the Escrow Agreement, and (iii) take all actions necessary in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative will have sole authority and power to act on behalf of each former shareholder of the Company with respect to the disposition, settlement or other handling of all claims against the Escrow Fund under this Agreement and all related rights or obligations of the former shareholders of the Company arising under this Agreement. The Shareholders’ Representative will also have sole authority and power to act on behalf of each former shareholder of the Company with respect to any amendments to the Escrow Agreement. The Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to the Shareholders’ Representative, to keep the former shareholders of the Company reasonably informed with respect to actions of the Shareholders’ Representative pursuant to the authority granted the Shareholders’ Representative under this Agreement. Each former shareholder of the Company shall promptly provide written notice to the Shareholders’ Representative of any change of address of such shareholder.
(b) In all matters relating to the disposition, settlement or other handling of claims against the Escrow Fund under this Agreement or any amendments to the Escrow Agreement, the Shareholders’ Representative (or his or her successor) shall be the only party entitled to assert the rights of the former shareholders of the Company. A decision, act, consent or instruction of the Shareholders’ Representative hereunder shall constitute a decision, act, consent or instruction of all former holders of Company Stock and shall be final, binding and conclusive upon each of such shareholders, and the Escrow Agent and Parent 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 every such holder of Company Stock. The Escrow Agent and Parent shall be relieved 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.
(c) The Shareholders' ’ Representative shall be allowed further access have the right to and permitted recover from the Escrow Fund, prior to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating any distribution to the Earn Out or holders of Company Stock (but after any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating disbursement from the Escrow Fund to the Earn Out or any ClaimsEscrow Agent pursuant to terms and conditions of the Escrow Agreement), the Shareholders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity (the “Shareholders’ Representative’s Expenses”). In the event the Escrow Property is insufficient to satisfy the Shareholders’ Representative’s Expenses, then each holder of Company Stock will be obligated to pay a percentage of the Shareholders’ Representative’s Expenses in excess of the Escrow Fund proportionate to that holder’s Escrow Holdback.
(d) The provisions set forth Shareholders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Shareholders’ Representative to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own gross negligence, bad faith or willful misconduct. In all questions arising under this Section 10.15 Agreement or the Escrow Agreement, the Shareholders’ Representative may rely on the advice of outside counsel, and the Shareholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholders’ Representative based on such advice.
(e) The holders of Company Stock shall severally but not impose jointly indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss, liability or obligation expense incurred without gross negligence, bad faith or willful misconduct, to the extent permitted by applicable law, on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of holders of a majority-in-interest of those holders must be delivered to Parent and the Escrow Agent not less than ten (10) calendar days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice date such consent is received by Parent and the Escrow Agent.
(g) In the event that the Shareholders’ Representative becomes unable or unwilling to continue in his or its capacity as Shareholders’ Representative, or if the Surviving Entity Shareholders’ Representative resigns as a Shareholders’ Representative, a majority-in-interest of the holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the holders of a majority-in-interest of such holders must be delivered to the contrary, Parent and the Surviving Entity shall Escrow Agent. Such appointment will be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding effective upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as later of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor indicated in the consent or the date such consent is received by Parent and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxthe Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Shareholders’ Representative. (a) By the execution and delivery of this AgreementThe Shareholders hereby irrevocably appoint Xxxxxxx X. Xxxxxx, subject Xx., a Shareholder, to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act serve as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf representative of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service date of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all (the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the "Shareholders' Representative is irrevocableRepresentative"). EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY-IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to rely, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the fully protected in relying, upon all actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunderRepresentative. The Shareholders' Representative may not be replaced or terminated at any time changed without the consent of Purchaser, except as provided in the next sentence. In the event of the death of the Shareholder' Representative, the Shareholders shall promptly irrevocably appoint by those Shareholders holding a majority in interest vote of the Company's shares Shareholders (based on stock ownership immediately prior to the Closing. If ) one of the Person remaining Shareholders (or beneficial owners of Shareholders that are entities) who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling a natural person to continue to serve act as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. (a) By The Company Shareholders, by approving this Agreement and the execution transactions contemplated hereby, hereby irrevocably appoint Shareholder Representative Services LLC, a Colorado limited liability company, as the Shareholders’ Representative and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy their agent and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose purposes of effecting the consummation of the transactions contemplated by this Agreement Article 9 and the Transaction DocumentsEscrow Agreement, and exercising, on behalf of all Shareholders, consent to the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, taking by the Shareholders' ’ Representative shall have full power of any and authority, for all actions and on behalf the making of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices decisions required or permitted to be given hereunder taken by him under the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to Parent of cash out of the Escrow Fund in satisfaction of claims by Parent). The Shareholders’ Representative hereby agrees to negotiate, enter into settlements and thereundercompromises of claims, including third-party claims, to accept service comply with orders of process courts and awards of arbitrators with respect to such claims, resolve any claim made pursuant to Article 9, take all actions necessary in his judgment for the accomplishment of the foregoing and hereby accepts his appointment as the Shareholders’ Representative for purposes of Article 9 and the Escrow Agreement. Parent shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to Article 9 and the Escrow Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Shareholder by the Shareholders’ Representative, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or on any other agreements, certificates, stock powers, statements, notices, approvals, extensions action taken or waivers relating purported to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims be taken on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate Company Shareholder by the Shareholders' Representative which shall have the same force and effect ’ Representative, as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and fully binding upon such Company Shareholder. Each Effective Time Holder hereby agrees to receive correspondence from the Shareholders’ Representative, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him including in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)electronic form.
(b) Subject to the provisions of this Section 10.15(b), If the Shareholders' ’ Representative shall serve resign, die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Company Shareholders, then within 30 days after such from and after the Closing Date until the earlier of his removal resignation, death or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding disability, a majority in majority-in-interest of the Company's shares immediately prior Effective Time Holders shall appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Shareholders’ Representative” for purposes of Article 9, the Escrow Agreement and this Section 10.1.
(c) A Shareholders’ Representative shall not be liable to the ClosingEffective Time Holders for any act done or omitted hereunder as Shareholders’ Representative except for gross negligence or willful misconduct. If The Effective Time Holders shall indemnify each Shareholders’ Representative and hold each Shareholders’ Representative harmless against any loss, Liability or expense incurred and arising out of or in connection with the Person who is acting acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by such Shareholders’ Representative, as set forth in Section 10.1(d) below.
(d) The reasonable expenses incurred by the Shareholders' ’ Representative is terminated or replaced while acting on behalf of the Company Shareholders under the authorization granted in this Section 10.1 shall be borne by the Shareholders or is unable or unwilling to continue to serve as Effective Time Holders pro rata and shall be payable first out of the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest ’ Representative Funds and then out of the Company's shares immediately prior to the ClosingEscrow Fund; provided, however, that all payments to the Shareholders' ’ Representative out of the Escrow Fund pursuant to this Section 10.1(d) shall not voluntarily resign without exceed the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes actual amount of this Agreement be any earnings realized from the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment investments of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out all or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations portion of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxEscrow Fund.
Appears in 1 contract
Samples: Merger Agreement (Semtech Corp)
Shareholders’ Representative. (a) By the execution and delivery of Each Shareholder, by signing this Agreement, subject designates Xxxxxx Xxxxxx to be the terms “Shareholders’ Representative” for all purposes of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Attendant Documents, and exercising, Xxxxxx Xxxxxx hereby accepts such designation. Any and all actions of the Shareholders following the Closing shall be taken by the Shareholders’ Representative on behalf of all Shareholders, the rights and powers of the Shareholders and all Shareholders shall be bound by any and all actions taken by the Shareholders’ Representative on their behalf.
(b) Purchaser shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the Attendant Documents and the transactions provided for hereunder and thereunder. Without limiting the generality of the foregoing, Purchaser shall be entitled to rely upon any communication or writings given or executed by the Shareholders' ’ Representative as the communication or writing of all Shareholders. All communications or writings to be sent to the Shareholders pursuant to this Agreement and the Attendant Documents shall have full power be addressed to the Shareholders’ Representative, and authorityany communication or writing so sent shall be deemed notice to all Shareholders. Each Shareholder hereby consents and agrees that the Shareholders’ Representative is authorized to make and accept deliveries, for and including any notice or consent, on behalf of the Shareholderssuch Shareholder and including acceptance, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise Shareholders, of service of process from Purchaser or its representatives with respect to any and all rights that the Shareholders are permitted claim brought by or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of Purchaser hereunder or under the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this AgreementAttendant Documents.
(c) The Shareholders' ’ Representative shall be allowed further access is hereby appointed and constituted the true and lawful attorney in fact of each Shareholder, with full power of substitution and resubstitution in his, her or its name and on his, her or its behalf to and permitted act according to review the Surviving Entity's books and records during normal business hours and make copies reasonably required terms of (i) the working papers of Parent this Agreement and the Surviving Entity Escrow 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, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement or the Attendant Documents, amending on behalf of the Shareholders this Agreement or the Attendant Documents, waiving any or all rights of the Shareholders under this Agreement or the Attendant Documents, settling any and all claims for indemnification pursuant to Article 9 of this Agreement, and settling all disputes relating to the Earn Out Purchase Price pursuant to Article 3 of this Agreement. This power of attorney and all authority hereby conferred is granted in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and coupled with an interest and shall not be terminated by any act of any Shareholder, by operation of law, whether by death or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsevent.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent In the event of the death of Xxxxxx Xxxxxx or the Surviving Entity other than those explicitly set forth in resignation of Xxxxxx Xxxxxx as the Representative, then each Shareholder, by signing this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity designates Xxxxxxx Xxxxxx to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' ’ Representative for all purposes of this Agreement, and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxxx Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxhereby accepts such designation.
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Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ /s/ Xxxxxxx Xxxxxxx By: /s/ Raffy Lorentzian Name: Xxxxxxx Xxxxxxx Name: Raffy Lorentzian Title: Vice President, Corp. Dev. Title: Chief Financial Officer ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ /s/ Xxxxxx X. Xxxxx III By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxx, III Name: Xxxxxxx Xxxxxxx Title: President, CEO Title: President SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ /s/ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx ____________________________________ Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx ____________________________________ /s/ Xxxxxx X. Xxxxx III Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, /s/ Xxxxxx X. Xxxxxx 1986, as amended ____________________________________ Xxxxxx X. XxxxxxxXxxxxx /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxx XXXXXX X. XXXXXXX, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. 2.11.1. By signing a Written Consent or voting in favor of or consenting to the Merger, the approval of the principal terms of the Merger, the consummation of the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, or by surrendering or delivering to the Paying Agent (ai) By a Certificate or an affidavit in lieu thereof (with respect to holders of Company Capital Stock) or (ii) an executed Option Cancellation Agreement (with respect to holders of Vested Company Stock Options), in each case, in exchange for the execution and delivery of consideration to be paid in accordance with this Agreement, subject to each Company Holder irrevocably approves the terms of Section 10.15(b)appointment of, each and hereby irrevocably appoints Shareholder irrevocably appointsRepresentative Services LLC as the sole, authorizes exclusive, true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's lawful agent, representative, proxy representative and attorney-in-fact of all Company Holders and each of them (the “Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in his capacity as connection with, this Agreement and the agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of Company Holders hereunder to:
(a) act for Company Holders 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, and the payment or non-payment of any of the Indemnification Escrow Amount;
(b) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Shareholders' Representative) after the Closing Date for the purpose of effecting ’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, Agreement;
(c) do or refrain from doing any further act or deed on behalf of all Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as Company Holders could do if personally present;
(d) give or receive notices to be given or received by Company Holders under this Agreement (except to the extent that this Agreement expressly contemplates that any such notice shall be given or received by each Company Holder individually);
(e) receive service of process in connection with any claims under this Agreement;
(f) give any written direction to the Paying Agent or the Escrow Agent;
(g) agree to, negotiate and/or comply with the rights and powers determination of the Shareholders hereunder Working Capital and thereunderthe adjustment pursuant to Section 2.13; and
(h) agree to, negotiate, enter into settlements and compromises and/or comply with awards and court orders with respect to claims for indemnification; and All actions, notices, communications and determinations by or on behalf of Company Holders shall be given or made by the Shareholders’ Representative and all such actions, notices, communications and determinations by the Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all Company Holders, and no Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the generality All decisions and actions of the foregoing, the Shareholders' ’ Representative shall have full power and authority, for and on behalf of the Company Holders shall be deemed to be facts ascertainable outside of this Agreement.
2.11.2. The Shareholders’ Representative may resign at any time. If the Shareholders’ Representative becomes unable to perform its responsibilities hereunder or resigns, then holders of a majority of the Company Capital Stock, based on their Pro Rata Percentage, promptly shall designate in writing to take Buyer a single individual to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. Holders of a majority of the Company Capital Stock, based on their Pro Rata Percentage, may also replace the Person serving as the Shareholders’ Representative from time to time and for any reason upon at least ten days’ prior written notice to Buyer. The Shareholders’ Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the then outstanding shares of Company Capital Stock.
2.11.3. The Shareholders’ Representative shall act for Company Holders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative believes to be in the best interest of Company Holders. The Shareholders’ Representative is authorized to act on behalf of Company Holders notwithstanding any dispute or disagreement among Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be authorized thereunto. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 in the event that any such Representative Loss is finally adjudicated to exercise have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Holders the amount of such rightsindemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct; provided, power and authorityfurther, that in no event shall a Company Holder be liable under this Agreement or otherwise in connection with the transactions contemplated hereby or in connection therewith for any Representative Losses in excess of the Merger Consideration and thereby Option Merger Consideration actually paid, or that becomes due and to exercise such rights, power and authority as are incidental theretopayable in accordance with Section 2.14, to represent him, her or it. If not paid directly to the Shareholders’ Representative by the Company Holders, any Shareholder such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Reserve, (ii) the Adjustment Escrow Fund and after the ClosingIndemnification Escrow Fund, in each case at such time as remaining amounts would otherwise be distributable to give or receive the Company Holders and (iii) any notices required or permitted future Contingent Payments that become due and payable in accordance with Section 2.14; provided, that while this section allows the Shareholders’ Representative to be given hereunder and thereunderpaid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to accept service of process on behalf of promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or ’ Representative be required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and advance its own funds on behalf of the Shareholders, and Company Holders or otherwise. Notwithstanding anything in this Agreement to the extent Shareholders are asked to execute documents and to take other actions after contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the Closing and do not do so as promptly as possible when requestedrecourse against non-parties otherwise applicable to, the Shareholders appoint Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders' ’ Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary under this section. The foregoing indemnities will survive the Closing, the resignation or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event removal of the Shareholders' ’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(c) 2.11.4. The Shareholders' ’ Representative shall be allowed further access to and permitted to review treat confidentially any Confidential Information of the Buyer or the Surviving Entity's books Corporation disclosed to it pursuant to this Agreement and records during normal business hours and make copies reasonably shall not use such Confidential Information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any Confidential Information disclosed to it pursuant to this Agreement to anyone except as required of by Applicable Law; provided that (i) the working papers Shareholders’ Representative may disclose such Confidential Information to legal counsel, employees, advisors, agents or consultants, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto no less restrictive than the obligations set forth in Section 6.10 of Parent and the Surviving Entity relating to the Earn Out or any Claims and this Agreement, (ii) the Shareholders’ Representative (or legal counsel, employees, advisors, agents or consultants to whom Confidential Information is disclosed pursuant to clause (i) above) may disclose such Confidential Information in any supporting schedules, supporting analyses and other supporting documentation Action relating to this Agreement or the Earn Out transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Shareholders’ Representative may disclose to any Company Holder any such Confidential Information disclosed to the Shareholders’ Representative subject to such Company Holder agreeing with Buyer in writing to restrictions on the disclosure and use of such Confidential Information consistent with or any Claimsno less stringent than the restrictions to which the Shareholders’ Representative is subject pursuant to this Section 2.11.4.
2.11.5. Buyer shall be entitled to rely on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of Company Holders for all purposes under this Agreement and shall have no Liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative. Each Company Holder, by signing a Written Consent or otherwise voting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent along with an executed Letter of Transmittal (dwith respect to holders of Company Capital Stock) or by delivering an executed Option Cancellation Agreement (with respect to holders of Company Stock Options), in each case, in exchange for the consideration to be paid in accordance with this Agreement, hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative in the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.11, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Company Holder. The provisions set forth in of this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular2.11 are independent and severable, notwithstanding in any case any notice received by Parent or the Surviving Entity are irrevocable (subject only to the contrary, Parent Section 2.11.2) and the Surviving Entity shall be fully protected in relying upon coupled with an interest and shall be entitled (i) enforceable notwithstanding any rights or remedies that any Company Holder may have in connection with the transactions contemplated by this Agreement.
2.11.6. At the Closing, the Paying Agent shall distribute the Shareholders’ Representative Reserve to rely upon actionsthe Shareholders’ Representative, decisions which shall be maintained by the Shareholders’ Representative in a segregated account for paying directly or reimbursing the Shareholders’ Representative for any third party expenses in performing the obligations and determinations exercising the rights of the Shareholders' ’ Representative hereunder or under any agreements ancillary hereto. 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 (ii) will not voluntarily make these funds available to assume its creditors in the event of bankruptcy. Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Reserve and Company Holders irrevocably transfer and assign to the Shareholders’ Representative any ownership right that all actionsthey may otherwise have had in any interest that may accrue on funds held in the Shareholders’ Representative Reserve. Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, decisions and determinations recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Shareholders' ’ Representative are fully authorized Reserve other than as a result of its gross negligence or willful misconduct. For Tax purposes, the Shareholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by Company Holders at the time of Closing. The Shareholders’ Representative shall be reimbursed for out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Shareholders’ Representative Reserve; provided that if the Shareholders’ Representative Reserve is insufficient to pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from Company Holders on a several basis (and not a joint and several basis) according to their Pro Rata Percentage. Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Reserve is no longer necessary in connection with claims for indemnification of the Shareholders’ Representative pursuant to this Section 2.11, the Shareholders’ Representative shall distribute to the Paying Agent for further distribution to the Company Holders (solely out of the Shareholders’ Representative Reserve) the amount remaining in the Shareholders’ Representative Reserve after payment of all of the Shareholders’ Representative’s out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative. The Shareholders’ Representative Reserve shall not be available to Buyer to satisfy any claims hereunder. Any payments as may be required by the Shareholders’ Representative to be made directly to it by any Company Holders pursuant to this Agreement or any other agreement shall be paid in accordance with such Company Holder’s Pro Rata Percentage.
2.11.7. The provisions of this Section 2.11 shall be binding upon the Shareholders' Representative executors, heirs, legal representatives, personal representatives, successor trustees and the Shareholders. The Parties hereto have caused successors of each Company Holder, and any references in this Agreement to a Company Holder shall mean and Plan include the successors to the rights of Merger each applicable Company Holder hereunder, whether pursuant to be executed as testamentary disposition, the laws of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor descent and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxdistribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution approving this Agreement and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement hereby, and/or participating in the Merger and receiving the Transaction Documentsbenefits thereof, including the right to receive the consideration payable in connection with the Merger, and exercising, on behalf without any further action of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf any of the Shareholders, Optionholders, or the Company, each Shareholder and Optionholder shall be deemed to take all actionshave irrevocably approved the appointment and designation of, and hereby appoints and designates, Fortis Advisors LLC as its true and lawful attorney-in-fact and exclusive agent (the “Shareholders’ Representative”) with full power of substitution to exercise such rightsdo any and all things and execute any and all documents which may be necessary, power and authority, in connection with convenient or appropriate to facilitate the consummation of the transactions contemplated hereby and thereby the exercise of all rights and to exercise such rightsthe performance of all obligations under this Agreement, power the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and authority as are incidental theretothe Shareholders’ Representative Engagement Agreement, to represent any Shareholder from including: (i) receiving and after the Closing, to give or receive any forwarding of notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments communications pursuant to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Earn-Out Agreement and to settle all such Claims the Earn-Out Escrow Agreement (if any) and accepting service of process; (ii) giving or agreeing to, on behalf of all the Shareholders and exercise Optionholders, any and all rights consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (iii) negotiating and entering into, on behalf of all the Shareholders are permitted and Optionholders, the Earn-Out Escrow Agreement, as and if required pursuant to the terms of this Agreement; and (iv) with respect to any indemnification claims and all other matters arising under this Agreement, (A) disputing or required refraining from disputing, on behalf of each Shareholder and Optionholder relative to do or exercise under Article IX, and in connection with any Claim against or amounts to be received by the Shareholders and Optionholders under this Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement or the Earn-Out Agreement, (B) negotiating and compromising, on behalf of each Shareholder and Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or the Earn-Out Agreement, and (C) executing, on behalf of each Shareholder and Optionholder, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Shareholder or Optionholder on the one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall not take any action adverse to any Shareholder or Optionholder unless such action is also taken proportionately with respect to the others. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders and Optionholders, except as expressly provided herein, in the Earn-Out Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any other Ancillary Agreement, schedule, exhibit or the Disclosure Schedules.
(b) Each Shareholder and Optionholder hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such Shareholder and Optionholder, notwithstanding any dispute or disagreement among the Shareholders and Optionholders, and any Indemnified Party shall be entitled to rely on any and all action taken by the Shareholders’ Representative under this Agreement. The appointment , the Earn-Out Agreement and agency the Earn-Out Escrow Agreement (if any) without any liability to, or obligation to inquire of, any Shareholder or Optionholder, notwithstanding any knowledge on the part of any Indemnified Party of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or the Shareholders’ Representative Engagement Agreement shall be binding upon all of the Shareholders' Representative is irrevocableShareholders and Optionholders and their successors as if expressly confirmed and ratified in writing by the Shareholders and Optionholders, and no Shareholder or Optionholder shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 10.1, shall be deemed to be notice to each Shareholder and Optionholder for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative and the powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (A) are coupled with an interestinterest and shall be irrevocable by such Shareholder or Optionholder in any manner or for any reason, (B) shall survive the death, incompetence, bankruptcy or liquidation of any Shareholder or Optionholder and shall be binding on any successor thereto, and (C) shall survive the delivery of an assignment by any Shareholder or Optionholder of the whole or any fraction of his, her, or its interest in the Earn-Out Consideration; and (v) in the event that the person or entity serving as the Shareholders’ Representative resigns, dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve as a representative of the Shareholders or Optionholders, a representative appointed by a majority of Shareholders shall be the Shareholders’ Representative. Execution The newly-appointed Shareholders’ Representative shall notify Parent, the Paying Agent and any other appropriate Person in writing of his, her or its appointment, provide evidence that a majority of Shareholders approved such appointment and provide appropriate contact information for purposes of this Agreement, the Earn-Out Agreement by and the Shareholders Earn-Out Escrow Agreement (if any). Parent shall constitute agreement be entitled to be bound by rely upon, without independent investigation, the actions identity and validity of such newly-appointed Shareholders’ Representative as set forth in such written notice. If a successor Shareholders’ Representative is not appointed pursuant to the preceding procedure within 30 days after the Shareholders’ Representative’s resignation, death, incapacitation, filing for bankruptcy protection or other inability to serve as a representative, Parent shall appoint an independent and unaffiliated successor Shareholders’ Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholders' ’ Representative taken hereunder or any member of the Advisory Group and thereunder. The Parties agree that, as to all matters arising under the Closing and/or any termination of this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Earn-Out Agreement.
(c) The Each Shareholder and Optionholder hereby acknowledges and agrees that no Indemnified Party shall have any Liability to any Shareholder or Optionholder with respect to, and Shareholders and Optionholders jointly and severally shall indemnify all Indemnified Parties against, and agree to hold the Indemnified Parties harmless from, any and all Losses incurred by such Indemnified Parties arising out of any breach of this Section 10.14 by the Shareholders' ’ Representative shall be allowed further access or by any Shareholder or Optionholder, or the designation, appointment or actions of the Shareholders’ Representative pursuant to and permitted the provisions hereof, including with respect to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of any (i) failure by the working papers Shareholders’ Representative to deliver funds received by the Shareholders’ Representative (on behalf of Parent the Shareholders and the Surviving Entity relating to the Earn Out Optionholders) or any Claims other actions taken by the Shareholders’ Representative, and (ii) any supporting schedulesreliance by the Indemnified Parties on, supporting analyses and other supporting documentation relating to actions taken by the Earn Out Indemnified Parties in reliance on, the instructions of, notice given by or any Claimsother action taken or omitted by the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to: (i) rely upon the Certified Closing Report, (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, Optionholder or other party.
(d) Certain Shareholders and Optionholders 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 Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and the Shareholders’ Representative Engagement Agreement (such Shareholders and Optionholders, 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 to any Shareholders and Optionholders for any action or failure to act in connection with the acceptance or administration of the Shareholders’ Representative’s responsibilities hereunder, under the Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The provisions set forth Shareholders and Optionholders 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 this Section 10.15 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 Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second from any distribution of the Earn-Out Consideration otherwise distributable to the Shareholders and Optionholders at the time of distribution, and third, directly from the Shareholders and Optionholders. The Shareholders and Optionholders acknowledge that the Shareholders’ Representative shall not impose be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or obligation on Parent performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Earn-Out Agreement, the Shareholders’ Representative Engagement Agreement or the Surviving Entity other than those explicitly set forth 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 this Agreement. In particularits determination, notwithstanding are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred by the Shareholders’ Representative in any case any notice received by performing such actions.
(e) Upon the Closing, Parent or the Surviving Entity shall wire to the contrary, Parent and Shareholders’ Representative $100,000 (the Surviving Entity “Expense Fund Amount”). The Expense Fund Amount shall be fully protected held by the Shareholders’ Representative in relying upon a segregated client account and shall be entitled used (i) to rely upon actions, decisions and determinations for the purposes of paying directly or reimbursing the Shareholders' ’ Representative and for any Shareholders’ Representative Expenses incurred pursuant to this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or any Shareholders’ Representative Engagement Agreement, or (ii) to assume that all actionsas otherwise determined by the Advisory Group (the “Expense Fund”). The Shareholders’ Representative is not providing any investment supervision, decisions recommendations or advice and determinations shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders' ’ Representative are fully authorized is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. The Shareholders and binding upon Optionholders will not receive any interest on the Expense Fund and assign to the Shareholders' ’ Representative and any such interest. Subject to Advisory Group approval, the Shareholders’ Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Shareholders and Optionholders. The Parties hereto have caused this Agreement and Plan of Merger As soon as reasonably determined by the Shareholders’ Representative that the Expense Fund is no longer required to be executed as of withheld, the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986Shareholders’ Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent and/or Parent, as amended ____________________________________ Xxxxxx X. Xxxxxxxapplicable, as Settlor for further distribution to the Shareholders and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxOptionholders.
Appears in 1 contract
Shareholders’ Representative. Upon consummation of the Merger, each ---------------------------- of Xxx Xxxxxx Xxxxx, Xxxx X. Xxxxx, Xxxx X. Xxxxxxx and X. X. Xxxx, Xx., acting individually (a) By the execution and delivery of this Agreementeach, subject to the terms of Section 10.15(ba "Shareholders' Representative"), each Shareholder shall be irrevocably appoints, authorizes constituted and directs Xxxxxx X. Xxxxxxx to act appointed as such Shareholder's agent, representative, proxy the true and lawful agent and attorney-in-fact of each Shareholder, Continent Right holder and Company Stock Option holder, (other than any holder of Dissenting Shares) (each a "Securityholder" and together the "Securityholders"), each with full powers of substitution to act individually in the name, place and stead of each Securityholder with respect to the transactions contemplated by this Agreement, as the same may be from time to time amended, and to individually do or refrain from doing all such further acts and things, and to execute all such documents, as he shall deem necessary or appropriate in connection with any of the transactions contemplated hereby, including the power to execute and deliver all ancillary agreements, certificates, and documents which the Shareholders' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated hereby;
(a) to receive and receipt for all payments made by Merger Partner to Securityholders under this Agreement;
(b) to agree upon or compromise any matter related to the Final Closing Statement and any adjustments to the Merger Consideration or other calculations or payments to be made pursuant to Article I of this Agreement;
(c) to act for Securityholders with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of Securityholders any indemnification claim made by or against the Securityholders;
(d) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of Securityholders in the reasonable judgment of the Shareholders' Representative, shall be taken in the same matter with respect to all Securityholders, unless otherwise agreed by each Securityholder who is subject to any disparate treatment of a potentially adverse nature;
(e) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Shareholders' Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as Shareholders' Representative and to rely on their advice and counsel;
(f) to incur and pay out of the Merger Consideration expenses, including fees of brokers, attorneys and accountants incurred pursuant to the Merger and the other transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(g) to retain a portion of the Merger Consideration as a reserve against the payment of expenses incurred in his capacity as Shareholders' Representative; and
(h) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, to do or refrain from doing any further act or deed on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, Securityholders which the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, deems necessary or appropriate in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers his sole discretion relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense subject matter of all Claims against any Shareholder in connection with this Agreement as fully and to settle all such Claims on behalf completely as any of all the Shareholders Securityholders could do if personally present and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreementacting. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive deemed coupled with an interest and binding shall be irrevocable, and Merger Partner, Media Communications and any other person may conclusively and absolutely rely, without inquiry, upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions any action of this Section 10.15, including, at the expense any of the Shareholders' Representatives as the act of Securityholders in all matters referred to in this Agreement or any other document contemplated hereby. Upon consummation of the Merger, each of the Securityholders shall be deemed to retain attorneyshave ratified and confirmed all that the Shareholders' Representatives shall do or cause to be done by virtue of their appointment as Shareholders' Representatives of such Securityholder. Each of the Shareholders' Representatives shall act for Securityholders on all of the matters set forth in this Agreement in any manner that he considers appropriate in his sole discretion, accountants and the Shareholders' Representatives shall not be responsible to any Securityholder (or to Merger Partner, Media Communications or the Company or any other advisors to assist him party hereto) for any loss or damage any Securityholder may suffer by reason of the performance by the Shareholders' Representatives of their duties under this Agreement, other than loss or damage arising from willful violation of law or gross negligence in the performance of his duties hereunderunder this Agreement. All such expenses shall be shared pro rata among If all of the Shareholders based upon each Shareholder's portion of Shareholders' Representatives resign or cease to function in such capacity for any reason whatsoever, then the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the successor Shareholders' Representative shall not have be the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding person which a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingremaining Securityholders appoint; provided, however, that if for any reason no successor has been appointed within 15 days, any Securityholder shall have the Shareholders' Representative shall not voluntarily resign without right to petition the Shareholders first selecting a court of competent jurisdiction for appointment of the successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (Media General Inc)
Shareholders’ Representative. (a) By virtue of the execution and delivery adoption of this Agreement, subject each Shareholder hereby initially appoints, as of the date hereof, the Principal Shareholder as the Shareholders’ Representative. The Shareholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreements that are to be taken by the Shareholders’ Representative. The Shareholders’ Representative shall take any and all actions which he, she or it believes are necessary or appropriate under this Agreement and the Escrow Agreements, including, without limitation, executing the Escrow Agreements as Shareholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreements by the Shareholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreements, making payments, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Shareholders’ Representative in connection with this Agreement or the Escrow Agreements, defending all claims arising pursuant to Section 10.15(b2.6 (a “Working Capital Claim”), each Shareholder irrevocably appointsdefending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), authorizes consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent, Buyer and directs Xxxxxx X. Xxxxxxx to act as their respective agents regarding such Shareholder's agentclaims, representativedealing with Parent, proxy Buyer and attorney-in-fact (the Escrow Agent under this Agreement, taking any and all other actions specified in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions or contemplated by this Agreement and or the Transaction DocumentsEscrow Agreements, and exercisingengaging counsel, on behalf of all Shareholders, accountants or other representatives in connection with the rights and powers of the Shareholders hereunder and thereunderforegoing matters. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have the full power and authorityauthority to interpret all the terms and provisions of this Agreement and the Escrow Agreements and to consent to any amendment hereof or thereof in his, for and on behalf of her or its capacity as Shareholders’ Representative.
(b) The Company, the Shareholders, Parent and Buyer each hereby authorizes the Shareholders’ Representative to:
(i) Receive all notices or documents given or to take all actions, be given to Shareholders’ Representative pursuant hereto or to the Escrow Agreements or in connection herewith or therewith and to exercise such rights, power receive and authority, accept services of legal process in connection with any suit or proceeding arising under this Agreement or the transactions contemplated hereby Escrow Agreements;
(ii) Engage counsel, and thereby such accountants and to exercise other advisors and incur such rights, power other expenses in connection with this Agreement or the Escrow Agreements and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or therebythereby as the Shareholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Closing, to conduct take such action as the Shareholders’ Representative may in his, her or cease to conduct its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the defense representations or warranties of all Claims against any Shareholder Parent or Buyer contained in connection with this Agreement or in any document delivered by Parent or Buyer pursuant hereto; (B) taking such other action as the Shareholders’ Representative is authorized to take under this Agreement or the Escrow Agreements; (C) receiving all documents or certificates and to settle making all determinations, in their capacity as Shareholders’ Representative, required under this Agreement or the Escrow Agreements; and (D) all such Claims on behalf of all the Shareholders and exercise actions as may be necessary to carry out any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement transactions contemplated by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15Escrow Agreements, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), howeverwithout limitation, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless defense and/or settlement of any provisions claims for which indemnification is sought pursuant to this Article IX and any waiver of this Section 10.15(a).
(b) Subject to the provisions any obligation of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal Parent or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this AgreementBuyer.
(c) The Shareholders' ’ Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating have no duties to the Earn Out Shareholders or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating liability to the Earn Out Shareholders with respect to any action taken, decision made or any Claimsinstruction given by the Shareholders’ Representative in connection with the Escrow Agreements or this Agreement.
(d) The provisions set forth Shareholders’ Representative shall, if applicable, be indemnified by the Shareholders for and shall be held harmless against any loss, liability or expense incurred by the Shareholders’ Representative or any of his or her Affiliates and any of their respective partners, directors, officers, employees, agents, shareholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to such Shareholders’ Representative’s conduct as Shareholders’ Representative, other than losses, liabilities or expenses resulting from such Shareholders’ Representative’s willful misconduct in connection with its performance under this Section 10.15 Agreement and the Escrow Agreements. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall, when applicable, be paid by the Shareholders. The Shareholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders’ Representative in accordance with such advice, the Shareholders’ Representative shall not impose any liability or obligation on Parent be liable to the Shareholders or the Surviving Entity Escrow Agent or any other person. In no event shall the Shareholders’ Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those explicitly set forth that are satisfied out of the Escrow Amount.
(e) The Shareholders’ Representative shall have reasonable access to information of and concerning any Working Capital Claim and/or any Indemnity Claim and which is in this Agreement. In particularthe possession, notwithstanding in any case any notice received by custody or control of Parent or Buyer or Company Group and the Surviving Entity reasonable assistance of Parent’s, the Buyer’s and the Company Group’s officers and employees for purposes of performing the Shareholders’ Representative’s duties under this Agreement or the Escrow Agreements and exercising its rights under this Agreement and the Escrow Agreements, including for the purpose of evaluating any Indemnity Claim against the Indemnification Escrow Fund and any Working Capital Claim against the Working Capital Escrow Fund; provided that the Shareholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreements, disclose any nonpublic information from or concerning any Indemnity Claim or any Working Capital Claim to anyone (except to the contraryShareholders’ Representative’s attorneys, Parent accountants or other advisers, to Shareholders and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the Surviving Entity shall be fully protected in relying upon and performance of its duties hereunder, the Shareholders’ Representative shall be entitled to (i) to rely upon actionsany document or instrument reasonably believed to be genuine, decisions accurate as to content and determinations of the Shareholders' Representative signed by any Shareholder or any party hereunder and (ii) to assume that all actionsany Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(g) Each Shareholder acknowledges that Parent and Buyer are relying and shall rely on the authority of the Shareholder granted hereunder and will be materially prejudiced if this authority is revoked. Each Shareholder hereby agrees that it shall indemnify, decisions hold harmless, compensate and determinations reimburse Parent and each other Parent/Buyer Indemnified Party for any Losses suffered by Parent or any other Parent/Buyer Indemnified Party as a result of a revocation by such Shareholder of the authority granted hereunder other than as provided for herein.
(h) Subject to Section 9.6(g), the appointment of the Shareholders' ’ Representative are fully authorized hereunder is irrevocable, and binding upon any action taken by the Shareholders' ’ Representative pursuant to the authority granted in this Section 9.6 shall be effective and absolutely binding as the action of the Shareholders. The Parties hereto have caused ’ Representative under this Agreement and Plan of Merger to be executed as of or the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxEscrow Agreements.
Appears in 1 contract
Shareholders’ Representative. (a) By voting in favor of the execution Merger, executing the Voting and delivery Support Agreement or Support Agreement or, in the case of this AgreementCompany Option Holders and Company Restricted Stock Unit Holders, subject to a Letter of Transmittal or participating in the terms conversion or cancellation, as applicable, of Section 10.15(b)the Company’s Capital Stock, Common Options or Restricted Stock Units, each Equity Holder approves the designation of and designates Shareholder irrevocably appointsRepresentative Services LLC as the Shareholders’ Representative, authorizes as its, his or her true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose and agent, each with full power of effecting the consummation substitution or resubstitution, to act solely and exclusively on behalf of such Company Indemnifying Party with respect to the transactions contemplated by this Agreement and Agreement, including the Transaction DocumentsMerger, and exercising, to act on behalf of such Company Indemnifying Party in any litigation or arbitration involving this Agreement, to do or refrain from doing all Shareholderssuch further acts and things, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, to execute all such documents as the Shareholders' ’ Representative shall have full deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for such Company Indemnifying Party with regard to matters pertaining to indemnification referred to in this Agreement, including the power and authority, for and to compromise any indemnity claim on behalf of the Shareholders, such Shareholder;
(ii) to take act for such Company Indemnifying Party with regard to matters pertaining to litigation;
(iii) to execute and deliver all actions, and to exercise such rights, power and authority, documents in connection with the transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds for the payment of expenses of such Company Indemnifying Party and thereby apply such funds in payment for such expenses;
(v) to distribute any unused portion of the Reserve Account to the Company Indemnifying Parties in accordance with the terms of this Agreement;
(vi) to do or refrain from doing any further act or deed on behalf of such Company Indemnifying Party that the Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Company Indemnifying Party could do if personally present; and
(vii) to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against claims under this Agreement.
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, the Merger Sub and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. After the Closing, all notices required to be made or delivered by Buyer or the Merger Sub to the Company Indemnifying Party described above shall be made to the Shareholders’ Representative for the benefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the Merger Sub as applicable, to such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be in the best interest of the Company Indemnifying Parties and consistent with the obligations of the Company Indemnifying Parties under this Agreement, but none of the Shareholders’ Representative, Buyer, the Merger Sub, the Surviving Corporation or the Buyer Indemnitees shall be responsible to any Company Indemnifying Party for any damages which the Company Indemnifying Parties may suffer by the Shareholders performance of the Shareholders’ Representative’s duties under this Agreement or any agreements ancillary hereto, except that the Shareholders’ Representative shall be responsible for any damages directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct in the performance of its duties under this Agreement. The appointment Shareholders’ Representative shall not have any duties or responsibilities except those expressly set forth in the Transaction Documents, and agency 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 be entitled to consult with counsel and shall not be liable for any action or omission pursuant to the advice of counsel. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. By voting in favor of the Merger, executing the Voting and Support Agreement or Support Agreement or, in the case of Company Option Holders and Company Restricted Stock Unit Holders, a Letter of Transmittal or participating in the conversion or cancellation, as applicable, of the Company’s Capital Stock or Common Options or Restricted Stock Units, each Company Indemnifying Party agrees (on a several and not joint basis in accordance with his, her or its Pro Rata Portion) to indemnify, defend and hold harmless the Shareholders’ Representative, its agents and assigns from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of outside counsel and third party experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 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 is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date’ Representative, the Shareholders' ’ Representative shall act for will reimburse the Company Indemnifying Parties 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 Indemnifying Parties, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the Reserve Amount and (ii) the funds in the Escrow Fund but only at such time as remaining amounts would otherwise be distributable to the Company Indemnifying Parties; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Shareholders, Company Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and to agree that the extent Shareholders are asked to execute documents and to take other actions after foregoing indemnities will survive the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary resignation or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event removal of the Shareholders' ’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(c) The Shareholders' ’ Representative shall be allowed further access entitled to rely, and permitted shall be fully protected in relying, upon any statements furnished to review it by the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) Company, any Company Indemnifying Party, Buyer, the working papers of Parent Merger Sub or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Surviving Entity relating Shareholders’ Representative shall be entitled to act on the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsadvice of counsel selected by it.
(d) The provisions set forth Shareholders’ Representative will have the right to be reimbursed from the Reserve Account solely for its out-of-pocket expenses incurred, in its capacity as such, pursuant to this Agreement but will not otherwise be separately compensated for its services hereunder other than pursuant to the terms of that certain Engagement Letter to be entered into by and among Shareholders’ Representative, the Company, and certain of the Company Indemnifying Parties. The Reserve Account will be used solely for the purpose of paying the Shareholders’ Representative’s expenses under this Section 10.15 shall 11.13(d) and any amounts representing the indemnification obligations of the Company Indemnifying Parties to the Shareholders’ Representative under Section 11.13(b) above as if such obligations were a reimbursable expense. The Company Indemnifying Parties will not impose receive any liability interest or obligation earnings on Parent the Reserve Account and irrevocably transfer and assign to the 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 Surviving Entity Reserve Account other than those explicitly set forth 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 this Agreementthe event of bankruptcy. In particular, notwithstanding Any amounts remaining in any case any notice received by Parent or the Surviving Entity Reserve Account on the Reserve Amount Release Date shall be released to the contraryPaying Agent and Surviving Corporation for their payments to the Shareholders respectively. For tax purposes, Parent the Reserve Amount will be treated as having been received and voluntarily set aside by the Surviving Entity Company Indemnifying Parties (and, with respect to Company Option Holders and Company Restricted Stock Unit Holders, subject to applicable Tax withholding) at the time of Closing.
(e) In the event that the Shareholders’ Representative dies, becomes legally incapacitated, resigns (by providing Buyer a minimum of 10 day advance written notice), or is hereby removed by a vote of a majority in interest of the Company Indemnifying Parties from its position as Shareholders’ Representative, a successor Shareholders’ Representative shall be fully protected appointed in relying writing by a majority in interest of the Company Indemnifying Parties, such appointment to become effective upon the delivery of executed counterparts of such writing to Buyer, 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. Failing such appointment, any Company Indemnifying Party may apply to a court of competent jurisdiction for the appointment of a successor Shareholders’ Representative. If for any reason there is no Shareholders’ Representative at any time, all references herein to the Shareholders’ Representative shall be entitled (i) deemed to rely upon actions, decisions and determinations of refer to the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxCompany Indemnifying Parties.
Appears in 1 contract
Samples: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) By the execution and delivery of this Agreementa Letter of Transmittal, subject to the terms of Section 10.15(b)including counterparts hereof, each Shareholder Equity Holder hereby irrevocably appoints, authorizes constitutes and directs Xxxxxx X. Xxxxxxx to act appoints a committee consisting of a designee of KRG and Xxxx Xxxxxxxxxxx as such Shareholder's agent, representative, proxy the true and lawful agent and attorney-in-fact (the “Shareholder Representative”) of such Equity Holder with full powers of substitution to act in his capacity as Shareholders' Representative) after the Closing Date for name, place and stead of such Equity Holder with respect to the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, performance on behalf of such Equity Holder under the terms and provisions hereof and to do or refrain from doing all Shareholders, the rights such further acts and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actionsthings, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all documents, as the Shareholders and exercise any and all rights that the Shareholders are permitted Shareholder Representative shall deem necessary or required to do or exercise under Article IX, and appropriate in connection with any Claim against or by transaction contemplated hereunder, including the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocablepower to:
(i) act for such Equity Holder, and shall be deemed to be coupled if applicable, with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as respect to all indemnification matters arising under this Agreement and referred to herein, including the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and right to compromise or settle any such claim on behalf of the Shareholders, and such Equity Holder;
(ii) act for such Equity Holder with respect to the extent Shareholders are asked General Escrow Amount and the Intellectual Property Escrow Amount;
(iii) act for such Equity Holder with respect to execute documents the Viastar Matter and the Viastar Funding Amount;
(iv) amend or waive any provision hereof (including any condition to take other actions after the Closing Closing) in any manner that does not differentiate among any Equity Holder;
(v) employ, obtain and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding rely upon the Shareholders, such determination, action or event advice of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneyslegal counsel, accountants and other professional advisors to assist him as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of his the duties hereunder. All of the Shareholder Representative;
(vi) act for such Equity Holder with respect to all Merger Consideration matters and all Merger Consideration adjustment matters referred to herein;
(vii) incur any expenses, liquidate and withhold assets received on behalf of such Equity Holder prior to their distribution to such Equity Holder to the extent of any amount that the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses shall be shared pro rata among or deposit the same in an interest-bearing bank account established for such purpose;
(viii) receive all notices, communications and deliveries hereunder on behalf of such Equity Holder; and
(ix) do or refrain from doing any further act or deed on behalf of such Equity Holder that the Shareholder Representative deems necessary or appropriate, in the sole discretion of the Shareholders based upon each Shareholder's portion of Shareholder Representative, relating to the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, subject matter hereof as fully and completely as such Equity Holder could do if personally present and acting and as though any reference to such Shareholder herein was a reference to the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Representative.
(b) Subject to The appointment of the provisions of this Section 10.15(b), the Shareholders' Shareholder Representative shall serve as such from be deemed coupled with an interest and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative shall be irrevocable, and any other Person may be replaced or terminated at conclusively and absolutely rely, without inquiry, upon any time by those Shareholders holding a majority in interest action of the Company's shares immediately prior to the Closing. If the Person who is acting Shareholder Representative as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling act of each Equity Holder in all matters referred to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementherein.
(c) The Shareholders' In the event the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be allowed further access to the Person that KRG and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any ClaimsXxxx X. Xxxxxxxxxxx appoint.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Shareholders’ Representative. (a) By The Dandrit Consenting Holders have voted for and consented to the execution and delivery adoption of this AgreementAgreement and the approval of the transactions contemplated hereby, subject including but not limited to the terms of Section 10.15(b)Exchange, each Shareholder and have irrevocably appoints, authorizes and directs Xxxxxx X. appointed attorney Niels Xxxx Xxxxxxx as the Shareholders’ Representative to act on behalf of the Dandrit Consenting Shareholders, with the same effect as if each such Shareholder's agentDandrit Consenting Shareholder had individually appointed such Shareholders’ Representative, representativewith full power and authority to act in the name of and for and on behalf of each Dandrit Consenting Shareholder with respect to all matters arising in connection with, proxy or related to, this Agreement and the transactions contemplated hereby and thereby. Each of the matters referred to in this Section 1.7 shall be deemed to have been accepted, agreed upon, acknowledged or consented to, as applicable, by each Dandrit Consenting Shareholder upon the vote or consent by such Dandrit Consenting Shareholder for the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Exchange. The Shareholders’ Representative has been appointed (i) the agent and true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation each Dandrit Consenting Shareholder, with full power of the transactions contemplated by this Agreement and the Transaction Documentssubstitution, and exercisingwith full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Dandrit Consenting Shareholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement, and (ii) the agent for service of process for each Dandrit Consenting Shareholder, and the Dandrit Consenting Shareholders have irrevocably consented to the service of any and all process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Shareholders, the rights and powers of the Shareholders hereunder and thereunder’ Representative. Without limiting the generality of the foregoing, the power of the Shareholders' ’ Representative shall include the power to represent each Dandrit Consenting Shareholder with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) waive any and all conditions of this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith or therewith in any respect, (iii) receive notices or other communications, (iv) deliver any notices, certificates or other documents required, and (v) take all such other action and to do all such other things as the Shareholders’ Representative deems necessary or advisable with respect to this Agreement. Xxxxxx and Dandrit shall have full power the absolute right and authority, for and authority to rely upon the acts taken or omitted to be taken by the Shareholders’ Representative on behalf of the Dandrit Consenting Shareholders. Each Dandrit Consenting Shareholder has acknowledged and agreed that (i) all deliveries by Dandrit or the Parent including, without limitation, any payment, to the Shareholder’ Representative shall be deemed deliveries to the Dandrit Consenting Shareholders, (ii) Xxxxxx or Dandrit shall not have any liability with respect to take all actions, any aspect of the distribution or communication of such deliveries between the Shareholders’ Representative and any Dandrit Consenting Shareholder and (iii) any disclosure made to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give Shareholders’ Representative by or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, Xxxxxx or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and Dandrit shall be deemed to be coupled with an interesta disclosure made to each Dandrit Consenting Shareholder. Execution In the event that attorney Niels Xxxx Xxxxxxx refuses to, or is no longer capable of, serving as the Shareholders’ Representative hereunder, holders of a majority of the issued and outstanding capital stock of Dandrit shall promptly appoint a successor Shareholders’ Representative who shall be reasonably acceptable to Dandrit and shall thereafter be a successor Shareholders’ Representative hereunder, and the Shareholders’ Representative shall serve until such successor is duly appointed and qualified to act hereunder. The Dandrit Consenting Shareholders shall indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and third party expenses which the Shareholders’ Representative may suffer or incur by reason of any action, claim or proceeding brought against the Stockholders’ Representative arising out of or relating in any way to this Agreement, or any transaction to which this Agreement by relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the Shareholders shall constitute agreement to be bound by the actions willful misconduct or gross negligence of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)’ Representative.
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Share Exchange Agreement (DanDrit Biotech USA, Inc.)
Shareholders’ Representative. (a) By executing and delivering a Letter of Transmittal or by voting in favor of the execution and delivery adoption of this Agreement, subject to the approval of the principal terms of Section 10.15(b)the LCV Transaction, and by virtue of the consummation of the LCV Transaction or participating in the LCV Transaction and receiving the benefits thereof, including the right to receive consideration payable in connection with the LCV Transaction, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall be deemed to have approved of the designation of and appointed, and hereby irrevocably designates and appoints Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Representative Services LLC as to act solely in its capacity as such Shareholder's agent, representative, proxy the true and lawful attorney-in-fact fact, agent and representative of the LCV Shareholders, the holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants (in his capacity as the “Shareholders' ’ Representative”) after Closing for all purposes in connection with this Agreement and the Closing Date for the purpose agreements ancillary hereto with full power of effecting substitution 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 hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) authorizing payments under or pursuant to this Agreement and authorizing the Transaction Documentsdisbursements thereof to the LCV Shareholders, holders of the LCV 2019 Notes and exercisingholders of the LCV 2020 Warrants as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the LCV Shareholders, the rights and powers holders of the Shareholders hereunder LCV 2019 Notes and thereunder. Without limiting the generality holders of the foregoingLCV 2020 Warrants any and all consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants relative to any amounts to be received by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants on the one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders' ’ Representative shall have full power not take any action adverse to any LCV Shareholder, any holder of the LCV 2019 Notes and authorityany holder of the LCV 2020 Warrants unless such action is also taken proportionately with respect to the others.
(b) Each LCV Shareholder, for each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such LCV Shareholder, notwithstanding any dispute or disagreement among the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants, Subversive shall be entitled to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process rely on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or action taken after Closing by the Shareholders Shareholders’ Representative under this Agreement. The appointment and agency Agreement without any Liability to, or obligation to inquire of, any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants notwithstanding any knowledge on the part of Subversive of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders' ’ Representative is irrevocableafter Closing shall be binding upon all of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants and no LCV Shareholder, no holder of the LCV 2019 Notes and no holder of the LCV 2020 Warrants shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative after Closing, delivered in the manner provided in Section 8.03, shall be deemed to be notice to each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest. Execution of this Agreement interest and shall be irrevocable by the Shareholders shall constitute agreement to be bound by the actions such LCV Shareholder, such holder of the Shareholders' Representative taken hereunder LCV 2019 Notes and thereunder. The Parties agree that, such holder of the LCV 2020 Warrants in any manner or for any reason; and (v) in the event that the person or entity serving as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' ’ Representative shall act dies, becomes incapacitated, files for and on behalf bankruptcy protection or otherwise becomes unable to serve or resigns as a representative of the LCV Shareholders, holders of the LCV 2019 Notes and to holders of the extent Shareholders are asked to execute documents and to take other actions after LCV 2020 Warrants, then the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the LCV Shareholders, such determination, action or event holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants shall appoint a new Shareholders' Representative shall be conclusive and binding upon the Shareholders’ Representative. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' ’ Representative may be replaced or terminated resign at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby acknowledges and agrees that no Subversive Party shall have any Liability to any LCV Party with respect to, and the LCV Shareholders' , holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants jointly and severally shall indemnify all Subversive Parties against, and agree to hold the Subversive Parties harmless from, any and all Losses incurred by such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders’ Representative shall be allowed further access or by any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants or the designation, appointment or actions of the Shareholders’ Representative pursuant to and permitted the provisions hereof, including with respect to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of any (i) failure by the working papers Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of Parent any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the Surviving Entity relating to the Earn Out LCV 2020 Warrants) or any Claims other actions taken by the Shareholders’ Representative, and (ii) any supporting schedulesreliance by the Subversive Parties on, supporting analyses and other supporting documentation relating to actions taken by the Earn Out Subversive Parties in reliance on, the instructions of, notice given by or any Claimsother action taken or omitted by the Shareholders’ Representative.
(d) The provisions Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), which shall be funded by Subversive at the Closing in the amount of the Expense Fund. The Shareholders’ Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses or other obligations incurred by the Shareholders’ Representative pursuant to this Agreement and the agreements ancillary hereto acting in its capacity as such. The LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants will not receive any interest or earnings on the Expenses Account and irrevocably transfer and assign to the 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 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 the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants at the time of Closing. The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. Without limiting the foregoing, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Costs”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Shareholders’ Representative Cost is suffered or incurred; provided that, in the event that any such Shareholders’ Representative Cost 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 LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants the amount of such indemnified Shareholders’ Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of its duties under this Agreement shall not be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants based on their respective Pro Rata Share. If not paid directly to the Shareholders’ Representative by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants any such Shareholders’ Representative Costs may be recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund and (ii) any Contingent Merger Consideration at such time as any such amounts would otherwise be distributable to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants from their obligation to promptly pay such Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. The Shareholders’ Representative may also from time to time submit invoices to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants covering such Shareholders’ Representative Costs, which shall be paid by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such LCV Shareholder, such holder of the LCV 2019 Notes and such holder of the LCV 2020 Warrants with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Shareholders’ Representative for such time as the Shareholders’ Representative shall determine in its sole discretion. If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants such amount shall be distributed to the Paying Agent for further distribution to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants or otherwise. Notwithstanding anything in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity Agreement to the contrary, Parent any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the LCV Shareholders, holders of the LCV 2019 Notes and holders of the Surviving Entity shall LCV 2020 Warrants set forth elsewhere in this Agreement are not intended to be fully protected in relying upon and shall be entitled (i) applicable to rely upon actionsthe indemnities provided to the Shareholders’ Representative under this Section 8.14. The foregoing indemnities will survive the Closing, decisions and determinations the resignation or removal of the Shareholders' ’ Representative and (ii) or the termination of this Agreement. The Shareholders’ Representative will incur no liability of any kind with respect to assume that all actions, decisions and determinations of any action or omission by the Shareholders' ’ Representative are fully authorized and binding upon in connection with the Shareholders' Representative and the Shareholders. The Parties hereto have caused ’ Representative’s services pursuant to this Agreement and Plan any agreements ancillary hereto, except in the event of Merger liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to be executed as the advice of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxcounsel.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Reorganization (TPCO Holding Corp.)
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b8.16(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Lemna Hunter (the “Shareholders’ Representative”) to act as such Shareholder's ’s agent, representative, proxy and attorney-in-fact (in his capacity as the Shareholders' ’ Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction DocumentsAgreement, and exercising, on behalf of all the Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents Agreement or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or therebyhereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IXVII, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' ’ Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' ’ Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' ’ Representative shall act for and on behalf of the Shareholders, and to the extent the Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' ’ Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' ’ Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' ’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders' ’ Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.158.16, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration’s Pro Rata Portion. Under this Section 10.15(a8.16(a), however, the Shareholders' ’ Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Breaches.
(b) Subject to the provisions of this Section 10.15(b8.16(b), the Shareholders' ’ Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' ’ Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's ’s shares immediately prior to the Closing. If the Person who is acting as the Shareholders' ’ Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' ’ Representative, or otherwise ceases to be the Shareholders' ’ Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's ’s shares immediately prior to the Closing; provided, however, that the Shareholders' ’ Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' ’ Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' ’ Representative shall for purposes of this Agreement be the Shareholders' ’ Representative and from and after such time, the term "“Shareholders' ’ Representative" ” as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' ’ Representative shall be allowed further access to and permitted to review the Surviving Entity's Company’s books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent Buyer and the Surviving Entity Company relating to the Earn Earn-Out Amount or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Earn-Out Amount or any Claims.
(d) The provisions set forth in this Section 10.15 8.16 shall not impose any liability or obligation on Parent Buyer or the Surviving Entity Company other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent Buyer or the Surviving Entity Company to the contrary, Parent and the Surviving Entity Buyer shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' ’ Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' ’ Representative are fully authorized and binding upon the Shareholders' ’ Representative and the Shareholders. The Parties parties hereto have caused this Stock Purchase Agreement and Plan of Merger to be executed as of the date first written above. NTS TECHNICAL SYSTEMS By: /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: CFO NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIESCFO MECHTRONIC SOLUTIONS, INC. By: _________________________________ /s/ Xxxx Spruce Name: Xxxx Spruce Title: ELAPresident, CEO LA XXX ASCENSIONS, LLC By: _________________________________ /s/ Xxxx Spruce Managing Member NEW TECH I, LP By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: SOLELY FOR SECTION 3General Partner QUATRO VENTURES, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ LLC By: /s/ Xxxxx Xxxxxx X. Name: Xxxxx Xxxxxx Title: Managing Member /s/ Lemna Hunter Lemna Hunter /s/ Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxXxxxxx
Appears in 1 contract
Samples: Stock Purchase Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. p) The Sellers, by executing or approving this Agreement and the transactions contemplated hereby, irrevocably agree to appoint and constitute Xxxxxxx Xxxxx (a) By and by the execution and delivery of this AgreementAgreement as the Shareholders’ Representative, subject to Xxxxxxx Xxxxx hereby accept his appointment) for and on behalf of the terms of Section 10.15(b)Sellers as the true, each Shareholder irrevocably appoints, authorizes exclusive and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy lawful agent and attorney-in-fact for and on behalf of each such Seller to act: (i) as the Shareholders’ Representative under this Agreement, and to have the right, power and authority to perform all actions (or refrain from taking any actions) the Shareholders’ Representative shall deem necessary, appropriate or advisable in his capacity as Shareholders' Representativeconnection with, or related to, this Agreement and the transactions contemplated hereby; (ii) after in the Closing Date for name, place and stead of each Seller (A) in connection with the purpose of effecting the consummation of Share Purchase and the transactions contemplated by this Agreement and in accordance with the Transaction Documentsterms and provisions of this Agreement, and exercising(B) in any proceeding involving this Agreement, on behalf of to do, or refrain from doing, all Shareholderssuch further acts and things, the rights and powers necessary, appropriate or advisable in connection with any of the Shareholders hereunder foregoing, including execute and thereunderdeliver all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the Share Purchase, including this Agreement or agreeing to any modification or amendment of this Agreement in accordance with Section 9.10 of this Agreement and executing and delivering an agreement of such modification or amendment. Without limiting derogating from the generality of the foregoing, as of the date hereof the Shareholders’ Representative shall have the right, power and authority to: (i) give and receive notices, consents and communications, executed by the Shareholders’ Representative, including where this Agreement expressly require an action or consent of the Shareholders' Representative shall have full power Representative; (ii) authorize delivery to Buyer Indemnitees of the applicable portion of the Aggregate Consideration or supplemental indemnification amounts, if any, in satisfaction of claims by Indemnified Parties, (iii) object to such deliveries, (iv) agree to, negotiate, defend, resolve, enter into settlements and authoritycompromises of, for and any suit, proceeding, claim or dispute under this Agreement on behalf of the ShareholdersSellers and comply with orders of courts and awards of arbitrators with respect to such claims, (v) agree to, negotiate, enter into and provide amendments and supplements to take all actionsand waivers in respect of this Agreement, including termination of this Agreement, (vi) retain legal counsel, accountants, consultants, advisors and other experts, and to exercise such rights, power and authorityincur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby thereby; and (vii) to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after take all actions necessary or appropriate in the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service judgment of process on behalf the Shareholders’ Representative for the accomplishment of any or all of the foregoing. The identity of the Shareholders, ’ Representative may be changed by the joint consent of the Sellers upon not less than fifteen (15) days’ prior written notice to execute all of the Parties. The Shareholders’ Representative may resign from his position by providing a 15-day prior written notice to the Sellers and deliverin such case, or hold in escrow and releasethe case of death, any exhibits disability, or amendments to this Agreementinability of the Shareholders’ Representative, the Transaction Documents other Seller shall become the replacement Shareholders’ Representative and notify the Parties. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for his services. Notices or any other agreementscommunications to or from the Shareholders’ Representative shall constitute notice to or from each of the Sellers. Any and all decisions, certificatesacts, stock powers, statements, notices, approvals, extensions consents or waivers relating to instructions made or given by the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder Shareholders’ Representative in connection with this Agreement and to settle all such Claims on behalf shall constitute a decision of all the Shareholders Sellers and exercise any shall be final, binding and all rights that the Shareholders are permitted or required to do or exercise under Article IXconclusive upon each and every Seller, and in connection with Parent and Buyer shall be entitled to rely upon any Claim against such decision, act, consent or by the Shareholders under this Agreement. The appointment and agency instruction of the Shareholders' Representative ’ Representative. This power of attorney is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder interest and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)irrevocable.
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Shareholders’ Representative. (a) By Each Shareholder hereby irrevocably appoints Diamond Castle Partners IV, L.P. (the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act “Shareholders’ Representative”) as such Shareholder's agent, ’s representative, proxy and attorney-in-fact and agent, with full power of substitution, and to act on behalf of such Shareholder in any amendment of or litigation or arbitration involving this Agreement and the Escrow Agreement and to do or refrain from doing all such further acts and things, and to execute and deliver all such documents, as such Shareholders’ Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement and the Escrow Agreement including, without limitation, the power:
(i) to take all action necessary or desirable in his capacity connection with the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, execute and deliver (A) the Escrow Agreement (with all such modifications or changes thereto as to which the Shareholders' ’ Representative, in its sole discretion, shall have consented), and (B) after the Closing Date for the purpose of effecting all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the consummation of the transactions contemplated by this Agreement and the Transaction DocumentsEscrow Agreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders’ Representative agrees to execute);
(iii) to collect and receive any amounts due or paid for the benefit of such Shareholder under this Agreement and to disburse such amounts to such Shareholder in accordance with its respective Escrow Percentage;
(iv) to enforce and protect the rights and interests of such Shareholder arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, and exercisingeach other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including without limitation, in connection with any and all claims for indemnification brought by any indemnifying party under Article IX hereof);
(v) to enforce payment of amounts due to such Shareholder from the Escrow Funds and any other amounts payable to such Shareholder under this Agreement or the Escrow Agreement, in each case, on behalf of all Shareholderssuch Shareholder to the extent of such Shareholder’s Escrow Percentage, in the rights and powers name of the Shareholders hereunder and thereunder. Without limiting Shareholders’ Representative or, if the generality Shareholders’ Representative so elects, in the names of such Shareholder;
(vi) to cause to be paid out of the foregoingEscrow Fund the full amount of any Losses arising out of the indemnification provisions set forth in Article IX hereof, or any amounts payable by such Shareholder to an indemnified party in respect of any compromise or settlement of any claim for indemnification under such Article IX agreed to by the Shareholders' ’ Representative shall have full power in its sole discretion;
(vii) to refrain from enforcing any right of such Shareholder arising out of or under or in any manner relating to this Agreement or the Escrow Agreement;
(viii) to utilize the funds comprising the Escrow Amount to make any payment which is required pursuant to this Agreement or the Escrow Agreement;
(ix) to terminate this Agreement if the Shareholders are entitled to do so;
(x) to give and authorityreceive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims under this Agreement, for including service of process in connection with arbitration; and
(xi) to take all actions which under this Agreement may be taken by the Shareholders and to do or refrain from doing any further act or deed on behalf of the Shareholders which the Shareholders, to take all actions, and to exercise such rights, power and authority, ’ Representative deems necessary or appropriate in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers his sole discretion relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution subject matter of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder as fully and thereunder. The Parties agree that, completely as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and such Shareholder could do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)personally present.
(b) Subject to the provisions of The Shareholders’ Representative will not be liable for any act taken or omitted by it as permitted under this Section 10.15(b)Agreement, the Shareholders' Representative shall serve as except if such from and after the Closing Date until the earlier of his removal act is taken or the completion of his obligations hereunderomitted in bad faith or by intentional misconduct. The Shareholders' ’ Representative may will also be replaced fully protected in relying upon any written notice, demand, certificate or terminated at any time by those Shareholders holding a majority document that it in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases good faith believes to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative genuine (reasonably satisfactory to Parentincluding facsimiles thereof). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' ’ Representative shall not be allowed further access paid any fee for services to be rendered hereunder. All reasonable fees and permitted expenses incurred by the Shareholders’ Representative in performing its duties hereunder or under the Escrow Agreement (including any fees and expenses of legal counsel retained by such Representative) shall be borne by the Securityholders (severally as to review each Securityholder only and not jointly as to or with any other Securityholder) according to their respective Escrow Percentages; provided, that, to the Surviving Entity's books extent practical, the Shareholders’ Representative shall cause Parent or the Escrow Agent, as applicable, to deduct such fees and records during normal business hours expenses from the amounts otherwise distributable to the Securityholders. In particular and make copies reasonably required without limitation, the Shareholders acknowledge that the sum of $250,000 is being deposited by Parent into an account designated by the Shareholders’ Representative in accordance with Section 2.8(b) hereof (the “Shareholders’ Representative Expense Amount”), to be used for anticipated administrative expenses. At such time that the Shareholders’ Representative believes, in its sole and absolute discretion, that no additional administrative expenses will be incurred, the Shareholders’ Representative shall distribute any remaining funds from the Shareholders’ Representative Expense Amount to the Securityholders, according to their respective Escrow Percentages. If the expenses of the Shareholders’ Representative exceed the Shareholders’ Representative Expense Amount, (i) such expenses shall be borne by the working papers of Parent Securityholders (severally as to each Securityholder only and the Surviving Entity relating not jointly as to or with any other Securityholder) according to their respective Escrow Percentages immediately prior to the Earn Out or any Claims Effective Time and (ii) any supporting schedules, supporting analyses and other supporting documentation relating each of the Shareholders hereby authorizes the Shareholders’ Representative to apply proceeds otherwise distributable to such Shareholder pursuant to the Earn Out or Escrow Agreement to satisfy any Claims.
(d) The provisions set forth in of such Shareholder’s obligations under this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx10.2.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act Except as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholdersexpressly provided herein, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power duties, obligations, status and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event successorship of the Shareholders' Representative shall be conclusive determined as provided in the Appointment Agreements among the Shareholders' Representative and the Participating Holders and in the form contemplated by the Merger Agreement (the "Appointment Agreements"). Notwithstanding the foregoing, in the event of any conflict or inconsistency between the provisions of this Agreement and the Appointment Agreement, the provisions of the Appointment Agreement shall govern. All decisions of the Shareholders' Representative pursuant to this Agreement shall be binding upon the ShareholdersParticipating Holders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect keep the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance Participating Holders reasonably informed of his duties hereunder. All such expenses shall be shared pro rata among all or her decisions of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)a material nature.
(b) Subject The Shareholders' Representative is authorized to take any action deemed by him appropriate or necessary to carry out the provisions of, and to determine the rights of the Participating Holders under this Section 10.15(b), Agreement. The Shareholders' Representative shall promptly notify the Escrow Agent of any change in the address of any Participating Holder or any transfer (by operation of law or otherwise) of the right of any Participating Holder to receive Escrow Shares hereunder. The Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest agent of the Company's shares immediately prior Participating Holders for all purposes related to this Agreement, including without limitation service of process upon the ClosingParticipating Holders. If the Person who is acting as By his or her execution of this Agreement, the Shareholders' Representative is terminated or replaced by accepts and agrees to diligently discharge the Shareholders or is unable or unwilling duties and responsibilities of the Shareholders' Representative set forth in this Agreement. The authorization and designation of the Shareholders' Representative under this Section 7(b) shall be binding upon the successors and assigns of each Participating Shareholder. SWI and the Escrow Agent shall be entitled to continue to serve as rely upon such authorization and designation and shall be fully protected in dealing with the Shareholders' Representative, or otherwise ceases and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) shall be entitled to treat as genuine any letter or other document furnished to him or her by SWI or the working papers of Parent Escrow Agent and believed by him or her to be genuine and have been signed and presented by the Surviving Entity relating to the Earn Out proper party or any Claims parties; and (ii) any supporting schedules, supporting analyses shall be reimbursed for counsel fees and other supporting documentation relating to out-of-pocket expenses incurred by the Earn Out or any ClaimsShareholders' Representative in connection with this Agreement out of the net proceeds from the sale of Escrow Shares by the Escrow Agent as provided in paragraph (d) below.
(d) The provisions set forth Shareholders' Representative shall not be entitled to any compensation for services hereunder. To the extent the Shareholders' Representative shall incur out-of-pocket costs in the performance of his duties hereunder, the Shareholders' Representative shall be authorized to direct the Escrow Agent to distribute to the Shareholders' Representative for sale in the open market that number of Escrow Shares sufficient to generate net proceeds to reimburse the Shareholders' Representative for such out-of-pocket costs; provided, however, that the aggregate Closing Market Value of all Escrow Shares distributed to the Shareholders' Representative and sold for such purpose to pay expenses incurred with respect to defending claims pursuant to Section 10.5 of the Merger Agreement shall not exceed 12% of the aggregate Closing Market Value of all of the Escrow Shares and the aggregate Closing Market Value of all Escrow Shares distributed to the Shareholder Representative and sold to pay any other expenses incurred by the Shareholder Representative (together with any Escrow Shares sold to pay the arbitration expenses of the Participating Holders in accordance with Section 7(e)) shall not exceed 3% of the aggregate Closing Market Value of all the Escrow Shares (collectively, the "Reimbursement Shares"). In the event that the aggregate Claims and Set Aside Amounts exceed or would exceed 85% of the Closing Market Value of all the Escrow Shares, the Reimbursement Shares shall be held and distributed to the Shareholders' Representative first, to the extent necessary to reimburse the Shareholders' Representative as contemplated by this Section, and second, any remaining Reimbursement Shares may be used to satisfy indemnification Claims of SWI or held as a Set Aside Amount until all claims are satisfied or the Escrow Shares are exhausted. At the direction of the Shareholders' Representative to distribute Escrow Shares pursuant to this Section 10.15 shall not impose any liability or obligation on Parent or and the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity submission to the contraryEscrow Agent of documentation of the expenses incurred, Parent the Escrow Agent shall effect payment of such shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and instructing the Surviving Entity shall be fully protected transfer agent and to issue a certificate for the number of shares requested by the Shareholders' Representative registered in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations the name of the Shareholders' Representative and to issue a replacement certificate for the remaining Escrow Shares to the Escrow Agent.
(iie) To the extent that the Participating Holders are obligated to assume pay arbitration expenses pursuant to Section 3(c), the Shareholders' Representative shall be authorized to, and shall, direct the Escrow Agent to distribute to the Shareholders' Representative for sale in the open market, that all actionsnumber of Escrow Shares sufficient to generate net proceeds that will satisfy such obligations; provided, decisions however, the number of Escrow Shares distributed to the Shareholders' Representative and determinations sold for such purpose shall be subject to the limitation set forth in Section 7(d) above. At the direction of the Shareholders' Representative are fully authorized to distribute Escrow Shares pursuant to this Section and binding upon the submission to the Escrow Agent of documentation of the expenses incurred, the Escrow Agent shall effect payment of such shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and instructing the transfer agent to issue a certificate for the number of shares requested by the Shareholders' Representative registered in the name of the Shareholders' Representative and to issue a replacement certificate for the remaining Escrow Shares to the Escrow Agent. The Escrow Agent shall have no duty to determine, nor to verify any calculations or limitations set forth in Section 7(d) above, and shall rely on the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger ' Representative's request for shares to be executed within the guidelines set forth herein.
(f) Notwithstanding anything to the contrary in this Agreement, the Shareholders' Representative shall not have any personal liability to SWI, the Escrow Agent or any other person as a result of this Agreement, except for any liability (other than for a Claim itself or for any obligation of the date first written above. NATIONAL TECHNICAL SYSTEMSParticipating Holders to pay expenses or indemnify the Escrow Agent, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERSfor which the Shareholders' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxRepresentative shall not be liable) resulting from the gross negligence or willful misconduct of the Shareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution Each Significant Shareholder hereby irrevocably makes, constitutes and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs appoints Xxxxxx X. Xxxxxxx to act as such Shareholder's agenthis, representative, proxy her or its exclusive agent and true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose with full power of effecting substitution 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 this Agreement Agreement, including but not limited to: (i) make all decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any amounts payable or distributable to the Sellers hereunder; (iii) execution and the Transaction Documents, and exercisingdelivery, on behalf of all ShareholdersSellers, the rights Stock Escrow Agreement and powers Cash Escrow Agreement and any other document required by this Agreement; (iv) receipt of the Shareholders payments hereunder and thereunder. Without limiting under the generality Stock Escrow Agreement and the Cash Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of the foregoing, the Shareholders' Representative shall have full power notices and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments communications pursuant to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Stock Escrow Agreement and the Transaction Documents after the Closing DateCash Escrow Agreement; (vi) administration of this Agreement, the Shareholders' Representative shall act Stock Escrow Agreement, and the Cash Escrow Agreement, including the resolution of any dispute or claim; (vii) the resolution, settlement, or compromise of any claim for and indemnification asserted against Sellers pursuant to 5.1(a); (viii) asserting, on behalf of the ShareholdersSellers, claims for indemnification under Section 5.1(b) and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requestedresolving, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute settling or compromising all such documents claims; (ix) consent or agree to any amendment to this Agreement, or waiver of any of its terms and to conditions; and (x) take all such actions deemed necessary or appropriate by in the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event judgment of the Shareholders' ’ Representative shall be conclusive for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Seller or other Person under any circumstance. In the event that Xxxxxx X. Xxxxxxx is unwilling or unable to serve as Shareholders’ Representative, then each Significant Shareholder hereby irrevocably makes, constitutes and binding upon the appoints R. Xxxx Xxxx as Shareholders. The Shareholders' ’ Representative shall have for all such incidental powers as may be necessary or desirable to carry into effect the provisions purposes of this Section 10.15Agreement. In the event that both Xxxxxx X. Xxxxxxx and R. Xxxx Xxxx are unwilling or unable to serve as Shareholders’ Representative, includingthen each Significant Shareholder hereby irrevocably makes, at the expense of the constitutes and appoints Xxxx Friendly as Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among ’ Representative for all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions purposes of this Section 10.15(a)Agreement.
(b) Subject Buyer and the Escrow Agent shall be fully protected in dealing with the Shareholders’ Representative under this Agreement and may rely upon the authority of the Shareholders’ Representative to act as agent of the Sellers. Any payment by Buyer to the provisions Shareholders’ Representative under this Agreement shall be considered a payment by Buyer to the Sellers. The appointment of this Section 10.15(b), the Shareholders' ’ Representative is coupled with an interest and shall serve as such from be irrevocable by any Seller in any manner and after for any reason. This power of attorney shall not be affected by the Closing Date until the earlier of his removal disability or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest incapacity of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer principal pursuant to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementapplicable law.
(c) The Shareholders' ’ Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of acknowledges that the Shareholders' ’ Representative has carefully read and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused understands this Agreement and Plan the form of Merger Individual Seller Agreement to be executed entered into by the Minority Shareholders, 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 the provisions of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxthis Agreement.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of approval of this Agreement by the Shareholders, the consummation of the Merger, the execution of the Voting and delivery of this Support Agreement, subject to Support Agreement or Option Cancellation Agreement, the terms Equity Holders’ participation and receipt of Section 10.15(b)the Merger Consideration and the Carve-out Plan Participants’ participation in the Carve-out Plan and receipt of the Carve-out Plan Amount, each Company Indemnifying Party approves the designation of and designates Shareholder irrevocably appointsRepresentative Services LLC as the Shareholders’ Representative, authorizes as its, his or her true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose and agent, each with full power of effecting the consummation substitution or resubstitution, to act solely and exclusively on behalf of such Company Indemnifying Party with respect to the transactions contemplated by this Agreement and Agreement, including the Transaction DocumentsMerger, and exercising, to act on behalf of such Company Indemnifying Party in any litigation or arbitration involving this Agreement, 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 transactions contemplated hereby, including, but not limited to, the rights and powers of power:
(i) to act for such Company Indemnifying Party with regard to matters pertaining to indemnification referred to in this Agreement, including the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and to compromise any indemnity claim on behalf of the Shareholders, such Shareholder;
(ii) to take act for such Company Indemnifying Party with regard to matters pertaining to litigation;
(iii) to execute and deliver all actions, and to exercise such rights, power and authority, documents in connection with the transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process receipts for funds on behalf of any Shareholders, Company Indemnifying Party;
(v) to execute receive funds for the payment of expenses of such Company Indemnifying Party and deliver, or hold apply such funds in escrow and release, payment for such expenses;
(vi) to cause the distribution of any exhibits or amendments unused portion of the Expense Fund Amount to the Equity Holders in accordance with the terms of this Agreement, ;
(vii) to do or refrain from doing any further act or deed on behalf of such Company Indemnifying Party that the Transaction Documents Shareholders’ Representative deems necessary or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers appropriate in his sole discretion relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense subject matter of all Claims against any Shareholder in connection with this Agreement as fully and completely as such Company Indemnifying Party could do if personally present; and
(viii) to settle all such Claims on behalf receive service of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and process in connection with any Claim against or by the Shareholders claims under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' ’ Representative may be replaced or terminated resign at any time by those Shareholders holding providing Buyer a minimum of twenty (20) days’ advance written notice and a successor Shareholders’ Representative, reasonably acceptable to Buyer, shall be appointed by a majority in interest of the Company's shares immediately prior Equity Holders. The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, the Merger Subs and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. All notices required to be made or delivered by Buyer or the Merger Subs to the Closing. If Company after the Person who is acting as Closing described above shall be made to the Shareholders' ’ Representative is terminated for the benefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or replaced by the Shareholders or is unable or unwilling Merger Subs as applicable, to continue to serve as such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the matters set forth in this Agreement in the manner the Shareholders' Representative, or otherwise ceases ’ Representative reasonably believes to be in the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in best interest of the Company's shares immediately prior Company Indemnifying Parties and consistent with the obligations of the Company Indemnifying Parties under this Agreement, but none of the Shareholders’ Representative, Buyer, the Merger Subs, the Surviving Corporation or the Buyer Indemnitees shall be responsible to any Company Indemnifying Party for any damages which the Closing; providedCompany Indemnifying Parties may suffer by the performance of the Shareholders’ Representative’s duties under this Agreement, however, except that the Shareholders' ’ Representative shall be solely responsible for all damages arising from willful misconduct or gross negligence in the performance of its duties under this Agreement. The Shareholders’ Representative shall not voluntarily resign without have any duties or responsibilities except those expressly set forth in the Shareholders first selecting a successor Transaction Documents, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders' Representative (reasonably satisfactory to Parent)’ Representative. Any successor to a Shareholders' Representative shall for purposes By virtue of approval of this Agreement be by the Shareholders' Representative and from and after such time, the term "consummation of the Merger, the Equity Holders’ participation and receipt of the Merger Consideration, each Company Indemnifying Party agrees to reimburse the Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound ’ Representative for all out-of-pocket costs and expenses incurred by the terms of Shareholders’ Representative under this Agreement, including fees for any attorneys or other representative it may employ.
(c) The Shareholders' ’ Representative shall be allowed further access entitled to rely, and permitted shall be fully protected in relying, upon any statements furnished to review it by the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) Company, any Company Indemnifying Party, Buyer, the working papers of Parent Merger Subs or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Surviving Entity relating Shareholders’ Representative shall be entitled to act on the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsadvice of counsel selected by it.
(d) The provisions set forth Company Indemnifying Parties hereby agree to severally (based on each such Company Indemnifying Party’s respective Indemnification Pro-Rata Portion) indemnify and defend the Shareholders’ Representative against, and to hold the Shareholders’ Representative harmless from, any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Expenses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Section 10.15 shall not impose Agreement and any liability agreements ancillary hereto, in each case as such Shareholders’ Representative Expense is suffered or obligation on Parent incurred; provided, that in the event that any such Shareholders’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Surviving Entity other than those explicitly set forth in this Agreement. In particularShareholders’ Representative, notwithstanding in any case any notice received by Parent or the Surviving Entity Shareholders’ Representative will reimburse the Company Indemnifying Parties the amount of such indemnified Shareholders’ Representative Expenses to the contraryextent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Indemnifying Parties, Parent and any such Shareholders’ Representative Expenses may be recovered by the Surviving Entity shall be fully protected in relying upon and shall be entitled Shareholders’ Representative from (i) to rely upon actions, decisions and determinations of the Shareholders' Representative funds in the Expense Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to assume the Company Indemnifying Parties; provided, that all actionswhile this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, decisions this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Shareholders’ Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Company Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and determinations agree that the foregoing indemnities will survive the resignation or removal of the Shareholders' ’ Representative are fully authorized and binding upon or the termination of this Agreement. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders' ’ Representative and in connection with the Shareholders. The Parties hereto have caused ’ Representative’s services pursuant to this Agreement and Plan any agreements ancillary hereto, except in the event of Merger liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel.
(e) Subject to the terms and conditions of this Agreement, upon the Closing, Buyer shall wire to the Shareholders’ Representative the Expense Fund Amount pursuant to wire instructions provided to Buyer, which shall be held by the Shareholders’ Representative and shall be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third party expenses incurred pursuant to this Agreement, the Escrow Agreement, Paying Agent Agreement or any Shareholders’ Representative letter agreement (the “Expense Fund”). The Shareholders’ Representative will hold these funds separate from its corporate funds. The Company Indemnifying Parties shall not receive interest or other earnings on amounts in the Expense Fund and the Company Indemnifying Parties irrevocably transfer and assign to the Shareholders’ Representative any ownership right that the Company Indemnifying Parties may have in any interest or other earnings that may accrue on amounts in the Expense Fund. The Company Indemnifying Parties acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. Contemporaneous with or as soon as practicable following the completion of the Shareholders’ Representative’s duties, the Shareholders’ Representative will deliver the balance of the Expense Fund (if any) to the Escrow Agent for further distribution to the Equity Holders in accordance with the terms of the Escrow Agreement. For Tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Equity Holders, other than the Vested Option Holders, at the time of Closing. The portion of the Expense Fund with respect to the Vested Company Options described in Section 2.4 of this Agreement is subject to substantial limitations or restrictions and is subject to the claims of the Company’s creditors such that such portion of the consideration is not constructively received by the holders for Tax purposes at the time of Closing and is not intended to be executed compensation or wages, or subject to withholding as such, until the distribution of such portion of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, Expense Fund (if any).The parties agree that the Shareholders’ Representative is not acting as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor a withholding agent or in any similar capacity in connection with the Expense Fund and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxshall have no liability for any tax reporting with respect to the final distribution of the Expense Fund to the Equity Holders by the Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) By the execution and delivery virtue of their approval of this Agreement, subject the Shareholders will be deemed to have irrevocably constituted and appointed, effective as of the terms of Section 10.15(bClosing, Yag Patex (xxe "Shareholder Representative"), each Shareholder irrevocably appoints, authorizes as their true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy lawful agent and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, enter into any agreement in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after by the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Escrow Agreement, including, without limitation, entering into the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Escrow Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and exercising on behalf of the ShareholdersShareholders all or any of the powers, authority, rights and discretion conferred on them under or the Escrow Agreement, including without limitation waiving any terms and conditions of any such agreement (other than the payment of the Escrow Fund), giving and receiving notices and communications, authorizing delivery to Parent of the Escrow Fund or other property from the Escrow Fund in satisfaction of claims by Parent, objecting to such deliveries, agreeing to, negotiating, entering into settlements and comprises of, and demanding arbitration and complying with orders of courts and awards of arbitrators with respect to the extent Shareholders are asked to execute documents such claims, and to take other taking all actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by in the judgment of the Shareholder Representative for the accomplishment of the foregoing. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. This power of attorney is coupled with an interest and is irrevocable. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders' . A decision, act, consent or instruction of the Shareholder Representative which shall have the same force be final, binding and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, and the Escrow Agent and Parent may rely upon any such determinationdecision, action act, consent or event instruction of the Shareholders' Shareholder Representative shall be conclusive and binding upon as being the decision, act, consent or instruction of the Shareholders. The Shareholders' Representative shall have all Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such incidental powers as may be necessary decision, act, consent or desirable to carry into effect the provisions of this Section 10.15, including, at the expense instruction of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Representative.
(b) Subject to In the provisions event that the Merger is approved by the Shareholders, effective upon such vote, and without further act of this Section 10.15(b)any Shareholder, the Shareholders' Shareholders shall agree, severally and not jointly, on a pro rata basis based on their proportionate ownership interests in the Company, to indemnify, defend and hold the Shareholder Representative shall serve as such harmless from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative against any loss, damage, tax, liability and expense that may be replaced incurred by the Shareholder Representative arising out of or terminated at any time by those Shareholders holding a majority in interest connection with the acceptance or administration of the CompanyShareholder Representative's shares immediately prior to the Closing. If the Person who is acting duties, except as the Shareholders' Representative is terminated or replaced caused by the Shareholders Shareholder Representative's gross negligence or is unable willful misconduct, including the legal costs and expenses of defending such Shareholder Representative against any claim or unwilling to continue to serve as liability in connection with the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest performance of the CompanyShareholder Representative's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementduties.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Merger Agreement (Xcarenet Inc)
Shareholders’ Representative. Each Shareholder hereby irrevocably appoints Axxxxx X. Xxxxxxx, Xx. (athe “Shareholders’ Representative”) By as the agent of such Shareholder for all purposes relating to or in connection with any transaction contemplated by or relating to this Agreement and to be carried out prior to, at or after the Closing including (i) approving any modifications or amendments to this Agreement, (ii) making decision with respect to the determination of the Net Working Capital Adjustment Amount, (iii) the appointment of the Escrow Agent and execution and delivery of the Escrow Agreement, (iv) entering into any settlement or submitting the dispute to the Independent Accountant, (v) taking any action that may be necessary or desirable, as determined by the Shareholders’ Representative, in its sole discretion, in connection with the termination of this Agreement as provided in Article XII, (vi) delivering or causing to be delivered to the Purchaser at the Closing certificates representing the Company Shares, (vii) executing and delivering, on behalf of the Shareholders and the Companies any and all notices, documents or certificates to be executed by the Shareholders or the Companies in connection with this Agreement and the transactions contemplated hereby; (viii) making any payments or paying any expenses under or in connection with this Agreement, subject to (ix) granting any consent or approval on behalf of the terms of Section 10.15(b), each Shareholders or the Companies under this Agreement; and (x) resolving disputes with the Purchaser that arise under this Agreement including disputes regarding indemnification claims by any Party. Each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act herby appoints the Shareholders’ Representative as such Shareholder's agent, representative, proxy ’s true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentsagent, and exercising, on behalf of all Shareholders, the rights and with full powers of the Shareholders hereunder substitution and thereunder. Without limiting the generality of the foregoingresubstitution, the Shareholders' Representative shall have full power in such Shareholder’s name, place and authoritystead, for in any and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authoritycapacities, in connection with the transactions contemplated hereby by this Agreement, granting unto said attorney-in-fact and thereby and to exercise such rightsagent, full power and authority as are incidental thereto, to represent any Shareholder from do and after the Closing, to give or receive any notices required or permitted perform each and every act and thing requisite and necessary to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder done in connection with this Agreement the sale of such Shareholder’s shares as fully to all intents and purposes as such Shareholder might or could do in person. Each Shareholder hereby authorizes the Purchaser and its Affiliates to settle all such Claims on behalf of all rely upon the Shareholders agency created hereby and exercise releases the Purchaser and its Affiliates from any and all rights that the Shareholders are permitted liability to such Shareholder of whatever nature arising out of or required relating to do or exercise under Article IXsuch agency, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the same extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary though any act committed or appropriate omitted by the Shareholders' ’ Representative which shall have the same force and effect as if performed pursuant to such agency had been committed or omitted by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Stock Purchase Agreement (Omega Healthcare Investors Inc)
Shareholders’ Representative. (a) By Each Indemnitor, by virtue of its receipt of any Initial Per Share Payment or Initial Option Payment, as applicable, shall be deemed to have consented and agreed to the execution and delivery appointment, effective as of the Closing Date, of Xxxxx Xxxxxx as the Shareholders’ Representative for purposes of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorneyattorneys-in-fact for such Indemnitor, with full power of substitution and authority to (in his capacity as Shareholders' Representativei) after the Closing Date for the purpose execute any amendment or waiver of effecting the consummation of the transactions contemplated by this Agreement and any other document or instrument necessary or advisable in order to carry out the Transaction Documentsprovisions of this Agreement, (ii) to give and exercisingreceive notices and communications, on behalf of all Shareholders(iii) to dispute any claim for indemnification hereunder, the rights (iv) to agree to, negotiate, enter into settlements and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actionscompromises of, and to exercise such rights, power and authority, in connection comply with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and releaseOrders with respect to, any exhibits dispute or amendments to this AgreementLoss, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by in the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event judgment of the Shareholders' ’ Representative shall be conclusive and binding upon for the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense accomplishment of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingforegoing; provided, however, that the Shareholders' ’ Representative shall not voluntarily resign 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 Indemnitor without the Shareholders first selecting a successor prior written consent of such Indemnitor. Xxxxx Xxxxxx hereby consents and agrees to such appointment pursuant to this Section 10.9. The Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' ’ Representative shall be provided reasonable access to information regarding the Company and the Surviving Corporation for purposes the purpose of performing its duties hereunder; provided, however that the Shareholders’ Representative shall treat confidentially any non-public information.
(b) In all matters relating to this Agreement Article X, the Shareholders’ Representative shall be the Shareholders' Representative and from and after such time, only party entitled to assert the term "Shareholders' Representative" as used herein rights of the Company Indemnified Persons. The Indemnitors shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by all actions taken by the terms Shareholders’ Representative in his or her capacity as such, except for any action that conflicts with the limitations set forth in clause (d) of this AgreementSection 10.9. Parent is authorized to rely conclusively on any such action of the Shareholders’ Representative as being the duly authorized action of the Indemnitors and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions, decisions or actions of the Shareholders’ Representative. The Parent Indemnified Persons shall be entitled to rely on all statements, representations, decisions and actions of the Shareholders’ Representative.
(c) The Shareholders' ’ Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating promptly provide written notice to the Earn Out Indemnitors of any action taken on their behalf by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 10.9. 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 interests of the Indemnitors. 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 Claims and (ii) any supporting schedulesaction taken, supporting analyses suffered or omitted to be taken, under this 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 supporting documentation relating experts selected by him or her and shall not be liable for any action taken or omitted to be taken in good faith by him or her in accordance with the advice of such counsel, accountants or experts. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the Earn Out performance or observance of any Claimsof the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement, the Shareholders’ Representative shall not exercise any discretion or take any action.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity Notwithstanding anything to the contrarycontrary contained herein, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' ’ Representative is not authorized to, and shall not, accept on behalf of any Shareholder any consideration to which such Indemnitor is entitled under this Agreement and (ii) the Shareholders’ Representative shall not in any manner exercise, or seek to assume that all actionsexercise, decisions and determinations any voting power whatsoever with respect to securities of the Shareholders' Representative are fully authorized and binding upon Company now or hereafter owned of record or beneficially by any Indemnitor unless the Shareholders' ’ Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger is expressly authorized to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxdo so in a writing signed by such Indemnitor.
Appears in 1 contract
Samples: Merger Agreement (Computer Associates International Inc)
Shareholders’ Representative. (a) By the execution The Shareholders’ Representative is hereby appointed, authorized and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx empowered to act as such Shareholder's agenta representative for the benefit of the holders of the Shares (which for purposes of this Section 9.1 shall not include Disappearing Sub or KMG or holders of Dissenting Shares), representative, proxy as the exclusive agent and attorney-in-fact (to act on behalf of each such holder of the Shares, in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting connection with and to facilitate the consummation of the transactions contemplated by hereby and any post-Closing matters, including, without limitation, Article XI, which shall include the power and authority:
(i) subject to Section 9.1(e), to execute and deliver such waivers and consents in connection with this Agreement and each other agreement, document, instrument or certificate referred to herein or therein or the Transaction Documentstransactions provided for herein or therein as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable;
(ii) as representative, to enforce and exercising, on behalf of all Shareholders, protect the rights and powers interests of the Shareholders hereunder and thereunder. Without limiting the generality holders of the foregoing, Shares (including the Shareholders' ’ Representative, in his capacity as a Shareholder in Val-Tex) and to enforce and protect the rights and interests of the Shareholders’ Representative shall have full power arising out of or under or in any manner relating to this Agreement and authorityeach other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including, without limitation, in connection with any and all claims for indemnification brought under Article XI hereof and Reverse Merger Consideration adjustments pursuant to Section 2.5), and to take any and all actions that the Shareholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Shareholdersholders of the Shares, to take all actionsincluding, without limitation, asserting or pursuing any Legal Proceeding against KMG, Disappearing Sub and/or the Final Surviving Entity, defending any Third-Party Claims or claims by the KMG Indemnified Parties, consenting to, compromising or settling any such claims, conducting negotiations with KMG, the Final Surviving Entity and to exercise their respective representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert any Shareholder from Legal Proceeding or investigation; (B) investigate, defend, contest or litigate any claim initiated by KMG, the Final Surviving Entity or any other Person, or by any Governmental Body against the Shareholders’ Representative and after any of the Closingholders of the Shares, to give or and receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any or all holders of the Shares in any such claim and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such claim; (C) file any proofs of debt, claims and petitions as the Shareholders’ Representative may deem advisable or amendments 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 Legal Proceeding, 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 refrain from enforcing any right of the holders of the Shares or any of them and/or the Shareholders’ Representative arising out of or under or in any manner relating to this Agreement or any other agreement, instrument or document in connection with the foregoing; 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 Transaction Documents Shareholders’ Representative or any by the holders of the Shares unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; and
(iv) to make, execute, acknowledge and deliver this Agreement, all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, statementsletters and other writings, noticesand, approvals, extensions or waivers relating to the transactions contemplated hereby or therebyin general, to conduct 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 cease proper or convenient in connection with or to conduct carry out the defense Transactions and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith, including retaining counsel, accountants and other experts and incurring fees and expenses.
(b) The Shareholders’ Representative shall not be entitled to any fee, commission or other compensation for the performance of all Claims against any Shareholder in its services hereunder. In connection with this Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to settle exercise all or any of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to any holders of the Shares by reason of any error in judgment or other act or omission performed or omitted under this Agreement or any such Claims other agreement, instrument or document, excepting only responsibility for any act or failure to act that represents willful misconduct or gross negligence, and (ii) the Shareholders’ Representative shall be entitled to rely on behalf the 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 holders of the Shares. Without prejudice to the foregoing, the Shareholders’ Representative shall have no Liability in respect of any Legal Proceeding brought against the Shareholders’ Representative by any holder of the Shares if the Shareholders’ Representative took or omitted taking any action in good faith. Each holder of the Shares shall indemnify, pro rata based upon such holder’s portion of the aggregate Reverse Merger Consideration, the Shareholders’ Representative against all losses, damages, Liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the Shareholders and exercise amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all rights that the Shareholders are permitted expense whatsoever reasonably incurred in investigating, preparing or required to do defending against any litigation, commenced or exercise under Article IXthreatened or any claims whatsoever), and arising out of or in connection with any Claim against Legal Proceeding or by in connection with any appeal thereof, relating to the Shareholders under this Agreement. The appointment and agency acts or omissions of the Shareholders' ’ Representative is irrevocable, and hereunder or otherwise. The foregoing indemnification shall be deemed to be coupled with an interest. Execution not apply in the event of this Agreement by any Legal Proceeding that finally adjudicates the Shareholders shall constitute agreement to be bound by the actions Liability of the Shareholders' ’ Representative taken hereunder and thereunderfor its willful misconduct. The Parties agree thatIn the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to the holders of Shares as to all matters arising under this Agreement the existence of a deficiency toward the payment of any such indemnification amount and the Transaction Documents after the Closing DateShareholders’ Representative providing a reasonably detailed description as to such deficiency, each holder of Shares shall promptly deliver to the Shareholders' ’ Representative shall act for and on behalf full payment of his ratable share of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all amount of such documents and to take all deficiency based upon such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared holder’s pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Reverse Merger Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(bc) Subject All of the indemnities, immunities and powers granted to the provisions of Shareholders’ Representative under this Section 10.15(b), the Shareholders' Representative Agreement shall serve as such from and after survive the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at and/or any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(cd) The KMG, Disappearing Sub, Surviving Sub and Final Surviving Entity shall have the right to rely 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 holders of the Shares. Nothing in this Section 9.1 shall alter the obligations or rights of KMG or the Final Surviving Entity found in the rest of this Agreement, it being understood that the obligations of such parties under this Section 9.1 are limited to KMG’s payment of the Reverse Merger Consideration.
(e) Notwithstanding the other provisions of this Section 9.1, other than the last sentence of Section 9.1(d), unless the affected holder consents in writing, the Shareholders’ Representative shall be allowed further access not agree to any amendments or modifications of, and permitted shall not execute and deliver any waivers or consents in connection with, this Agreement or the other agreements and documents referred to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of herein or therein, that (i) does not treat all holders of a particular series or class of the working papers Shares equally in all material respects, (ii) increases the indemnity obligations of Parent the holders of the Shares referenced in Sections 11.2 and 11.6, or (iii) increases the Surviving Entity relating Indemnity Holdback.
(f) Subject to Section 9.1(e), the Earn Out Share Surrender Forms shall include the provisions contained in Section 9.1(a) and Section 9.1(b) with such changes, additional terms, conditions, representations, warranties, releases, waivers, covenants, indemnities, consents and appointments as the Shareholders’ Representative either reasonably requests or deems necessary or appropriate for the consummation of the Transactions.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Claims holder of the Shares; and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to shall survive the Earn Out or any Claimsconsummation of the transactions contemplated herein.
(dh) Should the Shareholders’ Representative resign or be unable to serve, either (A) the Shareholders’ Representative shall appoint a single substitute agent to take on the responsibility of the Shareholders’ Representative hereunder or (B) if Xxxx X. Xxxxxxx III is unable to make such appointment, Councill shall appoint a single substitute agent to take on the responsibility of the Shareholders’ Representative hereunder, whose appointment shall be effective on the date of the Shareholders’ Representative’s resignation or incapacity.
(i) The provisions set forth in of this Section 10.15 shall not impose any liability or obligation on Parent or 9.1 are (i) intended to be for the Surviving Entity other than those explicitly set forth in this Agreement. In particularbenefit of, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actionsenforceable by, decisions and determinations of the Shareholders' ’ Representative and such Person’s heirs, representatives, successors or assigns, it being expressly agreed that such Persons shall be third party beneficiaries of this Section 9.1, and (ii) in addition to, and not in substitution for, any other right to assume indemnification or contribution that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto any such Person may have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxby contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Shareholders’ Representative. Capital Alliance Ventures Inc. (asuch person and any successor or successors being the "SHAREHOLDERS' REPRESENTATIVE") By shall act as the execution representative of the holders of Company Shares and delivery shall be authorized to act on behalf of such holders, and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, subject including, without limitation, with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article 8 and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of Section 10.15(b)the Escrow Agreement (including, each Shareholder irrevocably appointswithout limitation, authorizes the exercise of the power to (i) authorize the delivery of certain amounts in the Escrow Fund to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, (ii) agree to, negotiate, enter into settlements and directs Xxxxxx X. Xxxxxxx compromises of, and comply with orders of courts with respect to act as such Shareholder's agent, representative, proxy and attorney-in-fact any claims for indemnification (iii) take all actions necessary in his capacity as the judgment of the Shareholders' Representative) after the Closing Date Representative for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality accomplishment of the foregoing), (iv) incur and be reimbursed for any reasonable expenses incurred by the Shareholders' Representative in connection with the performance of its duties thereunder, which amounts shall be payable from the Escrow Fund after all distributions to Amalco have been made, and (v) reserve from the Escrow Amount to be distributed 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. In all matters relating to this Article 8, the Shareholders' Representative shall have full power and authority, for and on behalf be the only party entitled to assert the rights of the Shareholders, holders of the Company Shares. The Parent Indemnified Parties shall be entitled to take rely on all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement representations and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency decisions of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Representative.
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Business Combination Agreement (Rainbow Technologies Inc)
Shareholders’ Representative. (a) By From and after the execution Closing, the Shareholders’ Representative shall be authorized to act, and delivery of this Agreement, subject to be the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy agent and attorney-in-fact (in his capacity for and on behalf of each of the Participating Equity Holders as Shareholders' Representative) after contemplated by this Agreement and otherwise bind all of the Closing Date Participating Equity Holders for the purpose purposes of effecting this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the consummation 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 this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Escrow Agreement and to settle all agree to such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted amendments or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting modifications thereto as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' ’ Representative, in its sole discretion, may deem necessary or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingdesirable; provided, however, that the Shareholders' Representative shall relative interests of the Participating Equity Holders are not voluntarily resign without altered in a manner not contemplated by this Agreement, the Shareholders first selecting a successor Shareholders' Representative Paying Agent Agreement or the Escrow Agreement;
(reasonably satisfactory 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 Parent). Any successor or from Parent Group (on behalf of itself or any other Indemnified Party) relating to a Shareholders' Representative shall for purposes of 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 Shareholders' Representative rights and from interests of the Participating Equity Holders and after such timeto 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 hereby and, 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 term "Shareholders' Representative" as used herein shall refer Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the 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 the Independent Accountant or any successor. No appointment other payment on behalf of a successor shall be effective unless such successor agrees in writing the Participating Equity Holders pursuant to be bound by the terms of this Agreement.;
(cvii) The Shareholders' Representative shall be allowed further access consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and 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 take or forego any or all actions permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims not material and (ii) any supporting schedulesthe type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, supporting analyses independent public accountants and other supporting documentation 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 manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and 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 cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the Earn Out or transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any Claimsamounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(dxiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The provisions set forth fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 10.15 shall not impose 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. In particularThe Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, notwithstanding 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 its creditors in any case any notice the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by Parent or the Surviving Entity Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the contraryParticipating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, Parent and or at such earlier time as the Surviving Entity shall be fully protected Shareholders’ Representative may determine in relying upon and shall be entitled its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) to rely upon actions, decisions and determinations of the Shareholders' Representative not material and (ii) to assume the type that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed Registrant treats as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxprivate or confidential.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of Pursuant to (i) this Agreement, subject Agreement with respect to the terms Key Stockholder, and (ii) the written consent of Section 10.15(b)the Shareholders dated on or about the date hereof with respect to the other Shareholders, each the Shareholders have or will have constituted, appointed and empowered effective from and after the date of such consent, Globe Shareholder irrevocably appointsRep, authorizes LLC as the Shareholders’ Representative, for the benefit of the Shareholders and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact (to act on behalf of each Shareholder in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting connection with and to facilitate the consummation of the transactions contemplated by hereby, which shall include the power and authority:
(i) to negotiate, execute and deliver such waivers, consents and amendments (other than (A) the written consent referred to in this sentence and (B) any written consent of the Shareholders adopting this Agreement) under this Agreement and the Transaction Documentsconsummation of the transactions contemplated hereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable;
(ii) as the Shareholders’ Representative, to enforce and exercising, on behalf of all Shareholders, protect the rights and powers interests of the Shareholders hereunder and thereunder. Without limiting to enforce and protect the generality rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the foregoingtransactions provided for herein, and to take any and all Actions which the Shareholders' ’ Representative shall have full power and authority, believes are necessary or appropriate under this Agreement for and on behalf of the ShareholdersShareholders including, to take all actionsconsenting to, compromising or settling any claims, conducting negotiations with PLC, Parent, Merger Sub, the Surviving Corporation and to exercise their respective Representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert or defend any Shareholder from claim or institute any Action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by PLC, Parent, Merger Sub, the Surviving Corporation or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Shareholders, and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any or all Shareholders in any claim, Action, proceeding or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such claim, action, proceeding or amendments 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 refrain from enforcing any right of the Shareholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the Transaction Documents part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or any interest by the Shareholders’ Representative or by the Shareholders unless such waiver is in 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, statementsletters and other writings, noticesand, approvalsin general, extensions 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 waivers relating proper or convenient in connection with or to carry out the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed ;
(v) to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneysengage special counsel, accountants and other advisors to assist him in the performance of his duties hereunder. All and incur such other expenses shall be shared pro rata among all on behalf of the Shareholders based upon each Shareholder's portion in connection with any matter arising under this Agreement; and
(vi) to collect, hold and disburse (or cause its designees to collect, hold and disburse) any part of the aggregate Gross Closing Consideration. Under this Section 10.15(a), howeverInitial Purchase Price, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b)Final Purchase Price, the Shareholders' Representative shall serve as such from Purchase Price Adjustment Escrow Amount and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority Expense Holdback Amount in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by accordance with the terms of this Agreement.
(cb) The Shareholders' ’ Representative shall be allowed further access entitled to receive reimbursement from, and permitted be indemnified by, the Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or failing to review exercise all or any of the Surviving Entity's books and records during normal business hours and make copies reasonably required of powers conferred upon the Shareholders’ Representative hereunder, (i) the working papers Shareholders’ Representative shall incur no responsibility whatsoever to any Shareholder by reason of Parent and the Surviving Entity relating any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to the Earn Out or any Claims act which represents willful misconduct, and (ii) the Shareholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any supporting scheduleserror 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 Shareholder. Each Shareholder shall indemnify, supporting analyses severally and not jointly, based on such Shareholder’s Pro Rata Portion, the Shareholders’ Representative against all losses, damages, Liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other supporting documentation 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 Earn Out acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Claimsaction or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. The Shareholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Shareholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 9.16. In the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each Shareholder shall promptly deliver to the Shareholders’ Representative full payment of its Pro Rata Portion of the amount of such deficiency. The Shareholders’ Representative shall be entitled to refuse to take or to continue to take any action hereunder unless it shall first be fully indemnified to its reasonable satisfaction by the Shareholders (based on their respective Pro Rata Portions) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Shareholders’ Representative shall establish such terms and procedures for administering, investing and disbursing any amounts from the Expense Holdback Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Expense Holdback Amount remains undisbursed at such time as all disputes, claims and other matters relating to the transactions contemplated by this Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Shareholders’ Representative shall distribute to each Shareholder, by wire transfer of immediately available funds to an account designated by each Shareholder, such Shareholder’s Pro Rata Portion of such remaining balance of the Expense Holdback Amount (“Expense Holdback Distribution Amount”).
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity Corporation shall have the right to rely 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 fully protected in relying legally binding upon the Shareholders.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be entitled (i) to rely upon actionsirrevocable and survive the death, decisions and determinations incompetency, bankruptcy or liquidation of the Shareholders' Representative any Shareholder and (ii) shall survive the consummation of the Merger, and any action taken by the Shareholders’ Representative pursuant to assume that all actionsthe authority granted in this Agreement shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or direction from such Shareholder, decisions and determinations except for actions or omissions of the Shareholders' ’ Representative are fully authorized constituting willful misconduct.
(f) Each of the Company, PLC, Parent and binding upon Merger Sub acknowledges and agrees that the Shareholders' ’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that the Shareholders. The Parties hereto ’ Representative shall have caused no Liability to, and shall not be liable for any losses of, any of the Company, Merger Sub or Parent in connection with any obligations of the Shareholders’ Representative under this Agreement and Plan or otherwise in respect of Merger this Agreement or the transactions contemplated hereby, except to the extent such losses shall be proven to be executed as the direct result of willful misconduct by the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxShareholders’ Representative in connection with the performance of its obligations hereunder.
Appears in 1 contract
Samples: Merger Agreement (Endava PLC)
Shareholders’ Representative. (a) By Each of the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Shareholders designates Xxxxxxx to act Xxxxxxxxxx as such Shareholder's agent, representative, proxy its representative and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by all purposes under this Agreement and the Transaction DocumentsEscrow Agreement (the "SHAREHOLDERS' REPRESENTATIVE"), including without limitation, (i) taking all action necessary in connection with the indemnification obligations of the Shareholders under this Agreement and exercisingthe Escrow Agreement, including the defense or settlement of any claims and the making of payments with respect thereto, (ii) giving and receiving on behalf of all Shareholders, the rights and powers of the Shareholders hereunder all notices required to be given under this Agreement and thereunder. Without limiting the generality of Escrow Agreement, (iii) executing the foregoing, the Shareholders' Representative shall have full power and authority, Escrow Agreement as attorney-in-fact for and on behalf of the Shareholders, (iv) agreeing to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or executing amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise (v) taking any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative additional action as is irrevocable, and shall be deemed contemplated to be coupled with an interest. Execution of this Agreement taken by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and or on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When pursuant to this Agreement or any Transaction Document provides that a determination or any other and the Escrow Agreement. Any such action or event is conclusive and binding upon the Shareholders, such determination, action or event of taken by the Shareholders' Representative shall be conclusive valid and binding upon on each of the Shareholders. Each of the Shareholders also appoints the Shareholders' Representative as such Shareholder's custodian and attorney-in-fact to act for such Shareholder in connection with the Escrow Agreement arrangements as contemplated by the terms hereof and thereof, and the Shareholders' Representative hereby accepts such appointment. It is agreed by each of the Shareholders that the Buyer Common Stock to be held in custody by the Escrow Agent under the Escrow Agreement (the "ESCROW STOCK") will be subject to the interests of the Buyer and the Shareholders' Representative as attorney-in-fact; that the arrangements made by such Shareholder hereunder and thereunder are irrevocable; and that the obligations of such Shareholder hereunder shall not be terminated by any acts of such Shareholder, or by operation of law, whether by the death or incapacity of such Shareholder or any other party to this Agreement or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur after the execution of this Agreement and before the Closing Date or the delivery of the Escrow Stock to Buyer, the Shareholders' Representative is nevertheless authorized and directed to hold and dispose of the Escrow Stock (and to instruct the Escrow Agent to hold and dispose of the Escrow Stock) in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Shareholder's Representative shall have received notice of such death, incapacity or other event. The designation by the Shareholders of Xxxxxxx Xxxxxxxxxx as the Shareholders' Representative may not be revoked without the written consent of Buyer. All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Shareholders under this Agreement, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholders' Representative shall have all such incidental powers as may be necessary incur no liability to the Shareholders with respect to any action taken or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of suffered by the Shareholders' Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to retain attorneysbe genuinely and duly authorized, accountants and nor for any other advisors action or inaction with respect to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all indemnification obligations of the Shareholders based upon each Shareholderunder this Agreement, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholders' Representative's portion own willful misconduct or negligence. The Shareholders' Representative may, in all questions arising under this Agreement or the Escrow Agreement, rely on the advice of the aggregate Gross Closing Consideration. Under this Section 10.15(a)counsel, howeverand for anything done, omitted or suffered in good faith by the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject be liable to the provisions of this Section 10.15(b), Shareholders. The Shareholders acknowledge and agree that the Shareholders' Representative shall serve may incur costs and expenses on behalf of the Shareholders in his capacity as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest ("REPRESENTATIVE Expenses"). Each of the Company's shares immediately prior Shareholders agrees to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as pay the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed upon demand by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' therefor, such Shareholder's Proportionate Share of any Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such timeExpenses, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor provided that no Shareholder shall be effective unless such successor agrees required to pay, in writing to be bound by the terms aggregate, Representative Expenses in an amount in excess of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice Merger Consideration received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxsuch Shareholder.
Appears in 1 contract
Samples: Merger Agreement (Smartdisk Corp)
Shareholders’ Representative. (a) By The Company Shareholders (by virtue of the execution approval of the Merger and delivery the adoption of this Agreement) hereby irrevocably nominate, subject to constitute and appoint Malcolm Lewis as the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes agent and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement Xxxxxxx Xxxxeholders, with full power of substitution, to act in the name, place and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers stead of the Company Shareholders hereunder for purposes of executing any documents and thereunder. Without limiting the generality of the foregoing, taking any actions that the Shareholders' Representative shall have may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification under Section 8. Malcolm Lewis hereby accepts his appointment as the Shareholders' Reprxxxxxxxxxx.
(b) The Company Shareholders (by virtue of the approval of the Merger and the adoption of this Agreement) grant to the Shareholders' Representative full power authority to execute, deliver, acknowledge, certify and authority, for and file on behalf of the Company Shareolders (in the name of any or all of the Company Shareholders or otherwise) any and all documents that the Shareholders' Representative may, in his sole discretion, determine to take all actionsbe necessary, desirable or appropriate, in such forms and containing such provisions as the Shareholders' Representative may, in his sole discretion, determine to exercise such rightsbe appropriate, power and authority, in performing its duties as contemplated by Section 10.12(a). Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby by this Agreement, Buyer shall be entitled to deal exclusively with the Shareholders' Representative on all matters relating to Section 8 and thereby and shall be entitled to exercise such rights, power and authority as are incidental thereto, to represent rely conclusively (without further evidence of any Shareholder from and after the Closing, to give kind whatsoever) on any document executed or receive any notices required or permitted purported to be given hereunder and thereunder, to accept service of process executed on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Company Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed on any other action taken or purported to be taken on behalf of any Company Shareolders by the Shareholders' Representative, as fully binding upon such Company Shareolders.
(c) The power of attorney granted in Section 10.12(a): (i) is coupled with an interest. Execution of this Agreement interest and is irrevocable; (ii) may be delegated by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder Representative; and thereunder. The Parties agree that(iii) shall survive the dissolution, as to all matters arising under this Agreement and death or incapacity of each of the Transaction Documents after the Closing Date, Company Shareholders.
(d) If the Shareholders' Representative shall act for and on behalf die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Company Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding then a majority in interest of the Company's shares immediately prior to other Company Shareholders shall, within 10 days after such death or disability, appoint a successor agent for the ClosingCompany Shareholders and, promptly thereafter, shall notify Buyer of the identity of such successor. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his Any such successor shall promptly be appointed by become the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms for purposes of this Agreement.
(ce) The Shareholders' Representative shall not be allowed further access liable to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out any Company Shareholder for any act done or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of omitted hereunder as the Shareholders' Representative while acting in good faith (and (iiany act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) to assume that all actionsand without gross negligence or willful misconduct. All losses, decisions liabilities and determinations of expenses incurred by the Shareholders' Representative are fully authorized in connection with the performance of its duties as Shareholders' Representative shall be borne and binding upon paid exclusively by the Company Shareholders. If not paid directly to the Shareholders' Representative by the Company Shareholders, such losses, liabilities and expenses may be recovered by the Shareholders' Representative from the Escrow Amount otherwise distributable to the Company Shareholders (and not distributed or distributable to an Indemnified Party). The Parties hereto have caused All of the indemnities, immunities and powers granted to the Shareholders' Representative under this Agreement and Plan shall survive the termination of Merger to be executed as of the date first written abovethis Agreement. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx* * *
Appears in 1 contract
Samples: Merger Agreement (LOCAL.COM)
Shareholders’ Representative. (a) By In order to efficiently administer (i) the execution determination of the Long Term Debt of EASTERN, Working Capital of EASTERN, and delivery the Adjusted Merger Consideration, (ii) the waiver of this Agreement, subject any condition to the terms obligations of Section 10.15(b)the Shareholders to consummate the transactions contemplated hereby, each and (iii) the defense and/or settlement of any claims for which the Shareholders may be required to indemnify NETWORK pursuant to Article VIII hereof, the Shareholders hereby designate Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act John D. Crawford as such Shareholder's agent, representative, proxy and attorney-in-fact thexx xxxxxxxxxxxxxe (in his capacity as the "Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a").
(b) Subject to the provisions of this Section 10.15(b), The Shareholders hereby authorize the Shareholders' Representative shall serve as such from (i) to make all decisions relating to the determination of the Long Term Debt of EASTERN, the Working Capital of EASTERN, and after the Closing Date until Adjusted Merger Consideration, (ii) to take all action necessary in connection with the earlier waiver of his removal any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, or the completion defense and/or settlement of his obligations hereunder. The Shareholders' Representative any claims for which the Shareholders may be replaced required to indemnify NETWORK pursuant to Article VIII 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 terminated at any time by those Shareholders holding a majority in interest on behalf of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The All decisions and actions by the Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or Representative, including, without limitation, any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of agreement between the Shareholders' Representative and (ii) NETWORK relating to assume that the determination of the Long Term Debt of EASTERN, Working Capital of EASTERN, and the Adjusted Merger Consideration, or the defense or settlement of any claims for which the Shareholders may be required to indemnify NETWORK pursuant to Article VIII hereof, shall be binding upon all actions, decisions and determinations of the Shareholders' Representative are fully authorized , and binding upon no Shareholder shall have the Shareholders' Representative and right to object, dissent, protest or otherwise contest the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxsame.
Appears in 1 contract
Shareholders’ Representative. (a) By Each TARGET Shareholder constitutes and appoints Mx. Xxxxx XxXxxxxxxx (the “Shareholders’ Representative”) as its representative and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such TARGET Shareholder’s behalf in the absolute discretion of Shareholders’ Representative with respect to all matters relating to this Agreement, including execution and delivery of this Agreementany amendment, subject to the terms supplement, or modification of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and any waiver of any claim or right arising out of this Agreement and to execute and deliver any other documents as required, in the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf determination of the Shareholders’ Representative, to take all actionseffect the provisions herein;
(ii) to execute and deliver the Lock-Up Agreement to be delivered by each such TARGET Shareholder, and thereafter to exercise undertake, agree to, execute and deliver any amendments to such rightsLock-Up Agreement as determined to be necessary in the discretion of the Shareholders’ Representative; and
(iii) in general, power and authority, in connection with the transactions contemplated hereby and thereby to do all things and to exercise such rightsperform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable by the Shareholders’ Representative to effectuate the provisions of this Section 6.02.
(b) This appointment and grant of power and authority as are incidental theretois coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and will not be terminated by any act of any TARGET Shareholder or by operation of Law, whether by the death or incapacity of any TARGET Shareholder or by the occurrence of any other event. Each TARGET Shareholder hereby consents to represent the taking of any Shareholder from and after all actions and the Closing, to give or receive making of any notices decisions required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any taken or made by Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments ’ Representative pursuant to this AgreementSection 6.02. Each TARGET Shareholder agrees that Shareholders’ Representative shall have no obligation or liability to any Person for any action taken or omitted by Shareholders’ Representative in good faith, the Transaction Documents even if taken or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IXomitted negligently, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment each TARGET Shareholder shall indemnify and agency of the hold harmless Shareholders' ’ Representative is irrevocablefrom, and shall be deemed pay to be coupled with an interest. Execution of this Agreement by Shareholders’ Representative the Shareholders shall constitute agreement amount of, or reimburse Shareholders’ Representative for, any Loss that Shareholders’ Representative may suffer, sustain, or become subject to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless result of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the claim made or threatened against Shareholders' ’ Representative shall serve in his capacity as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementsuch.
(c) The Shareholders' Representative Company shall be allowed further access entitled to rely upon any document or other paper delivered by Shareholders’ Representative as being authorized by TARGET Shareholders and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent each TARGET Shareholder, and the Surviving Entity relating Company shall not be liable to any TARGET Shareholder for any action taken or omitted to be taken by the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any ClaimsCompany based on such reliance.
(d) The provisions set forth Until all obligations under this Agreement shall have been discharged, TARGET Shareholders who, immediately prior to the Closing, are entitled in this Section 10.15 the aggregate to receive more than fifty percent (50%) of the Exchange Shares, may, from time to time upon notice to the Company, appoint a new Shareholders’ Representative upon the death, incapacity, or resignation of Shareholders’ Representative. If, after the death, incapacity, or resignation of Shareholders’ Representative, a successor Shareholders’ Representative shall not impose have been appointed by TARGET Shareholders within fifteen (15) Business Days after a request by the Company, the Company may appoint a Shareholders’ Representative from among the TARGET Shareholders to fill any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any vacancy so created by notice received by Parent or the Surviving Entity of such appointment to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the TARGET Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx.
Appears in 1 contract
Samples: Share Exchange and Purchase Agreement (Pulse Evolution Group, Inc.)
Shareholders’ Representative. (a) By In addition to the other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the benefits thereof, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement, subject to each Company Shareholder (which, for the terms purpose of this Section 10.15(b)12.11, shall also mean each Shareholder MKD BVI Shareholder) hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoints Mxxx-Xxxx Xxxxx as such Shareholder's agent, representative, proxy and attorney-in-fact (and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in his capacity the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation ’ Representative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the Transaction Documentsdeath, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and exercising, agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of all the Company Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have has full power and authority, for and on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the Shareholders, terms and provisions of this Agreement and the documents to take all actions, be executed and to exercise such rights, power and authority, delivered by the Company Shareholders in connection with the transactions contemplated hereby and thereby and to exercise such rightsherewith, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to (ii) execute and deliver, or hold in escrow deliver and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other receive deliveries of all agreements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments, and other documents required or waivers relating permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts 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, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or thereby, to conduct waived and (x) take all actions necessary or cease to conduct appropriate in the defense judgment of all Claims against any Shareholder the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to Service by the provisions Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Section 10.15(b)Agreement or any other agreement contemplated hereby, the Shareholders' ’ Representative shall serve as will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the Closing Date until date hereof, but except as expressly provided herein, each of SPAC and the earlier Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of his removal the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the completion Company shall be entitled to rely conclusively (without further evidence of his obligations hereunderany kind whatsoever) on any document executed or purported to be executed on behalf of any Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders' ’ Representative may be replaced or terminated resign at any time time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by those the vote or written consent of the Company Shareholders holding a majority in interest of the Company's shares Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the ClosingCompany Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. If The Shareholders’ Representative will be promptly reimbursed by the Person who Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 is terminated or replaced by the Shareholders or is unable or unwilling pursuant to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingthis Agreement; provided, however, that the Shareholders' ’ Representative shall not voluntarily resign without be entitled to indemnification hereunder to the Shareholders first selecting extent it is finally determined in a successor court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders' ’ Representative (reasonably satisfactory to Parent)constituted actual fraud or were taken or not taken in bad faith. Any successor to a The Shareholders' ’ Representative shall for purposes be protected in acting upon any notice, statement or certificate believed by the Shareholders’ Representative 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. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to SPAC or any Affiliate of SPAC by reason of this Agreement be or the performance of the Shareholders' Representative and from and after such time’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the term "resignation or removal of the Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by ’ Representative or the terms termination of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Business Combination Agreement (Cetus Capital Acquisition Corp.)
Shareholders’ Representative. (a) By The Shareholders hereby appoint Ampersand as the execution true and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy lawful agent and attorney-in-fact of the Shareholders (the "SHAREHOLDERS' REPRESENTATIVE") with full power of substitution to act in his capacity the name, place and stead of the Shareholders with respect to the surrender of the stock certificates owned by the Shareholders to Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the Shareholders in any litigation or arbitration involving this Agreement, do or refrain from doing all such further acts and things, and execute all such documents as the Shareholders' RepresentativeRepresentative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(a) after the Closing Date to act for the purpose Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of effecting the Shareholders and to transact matters of litigation;
(b) to execute and deliver all ancillary agreements, certificates and documents that the Shareholders' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, Agreement;
(c) to do or refrain from doing any further act or deed on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, that the Shareholders' Representative shall have full power deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and authority, for and on behalf of completely as the Shareholders, Shareholders could do if personally present; and
(d) to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders claims under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive deemed coupled with an interest and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all irrevocable, and Buyer may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed all matters referred to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingherein. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders Ampersand resigns or is otherwise unable or unwilling to continue to serve as the Shareholders' Representative, the successor Shareholders' Representative shall be designated in writing by the Shareholders who hold a majority of the shares of Buyer Series A Preferred Stock issued pursuant hereto. If any individual Shareholders should die or otherwise ceases to be become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Shareholders' RepresentativeRepresentative pursuant to this Section 1.11 shall be as valid as if such death or incapacity, his successor termination or other event had not occurred, regardless of whether or not the Shareholders' Representative or Buyer shall promptly have received notice of such death, incapacity, termination or other event. All notices required to be appointed made or delivered by Buyer to the Shareholders holding a majority in interest shall be made to the Shareholders' Representative for the benefit of the Company's shares immediately prior Shareholders and shall discharge in full all notice requirements of Buyer to the Closing; provided, however, Shareholders with respect thereto. The Shareholders hereby confirm all that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory do or cause to Parent). Any successor to a Shareholders' Representative shall for purposes be done by virtue of this Agreement be its appointment as the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review act for the Surviving Entity's books and records during normal business hours and make copies reasonably required Shareholders on all of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions matters set forth in this Section 10.15 Agreement in the manner the Shareholders' Representative believes to be in the best interest of the Shareholders and consistent with the obligations under this Agreement, but the Shareholders' Representative shall not impose be responsible to the Shareholders for any liability loss or obligation on Parent or damages the Surviving Entity Shareholders may suffer by the performance by the Shareholders' Representative of its duties under this Agreement, other than those explicitly set forth in loss or damage arising from willful violation of the law by the Shareholders' Representative of its duties under this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent The Shareholders' Representative and the Surviving Entity its legal representatives shall be fully protected held harmless by the Shareholders from and indemnified against any loss or damages arising out of or in relying upon and connection with the performance of its obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law by the Shareholders' Representative of its duties hereunder. The foregoing indemnity shall be entitled (i) to rely upon actions, decisions and determinations survive the resignation or substitution of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxRepresentative.
Appears in 1 contract
Samples: Merger Agreement (TurboWorx, Inc.)
Shareholders’ Representative. (a) By In order to administer efficiently the execution and delivery registration of this Agreement, subject the Parent Stock pursuant to the terms Registration Agreement and the defense and/or settlement of Section 10.15(b)any Parent Claims for which members of the Parent Group may be entitled to indemnification pursuant to Article 8 hereof, each Shareholder irrevocably appointsat the Effective Time, authorizes by virtue of the Merger and directs Xxxxxx X. Xxxxxxx to his receipt of any Merger Consideration and without any further act as of such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated each Executive by this Agreement executing and delivering the Transaction Documents, Bonus Agreements and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection accordance with the transactions contemplated terms thereof and without any further act of such Executive, hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders irrevocably appoint the Shareholders' Representative as their limited irrevocable attorney in agent and attorney-in-fact to execute all for purposes of Article 8, the Escrow Agreement and the Registration Agreement , and the Shareholders' Representative hereby accepts such documents appointment.
(b) The Shareholders and the Executives hereby authorize the Shareholders' Representative (i) to take all such actions deemed necessary any action permitted or appropriate required to be taken by any Shareholder pursuant to the Registration Agreement; (ii) 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 the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to the Parent Group of the Escrow Shares and Escrow Cash out of the Escrow Fund in satisfaction of claims by the Parent Group); (iii) to take all action necessary in connection with the defense and/or settlement of any Parent Claims for which the Shareholders may be required to indemnify members of the Parent Group pursuant to Article 8 hereof (but only with respect to Parent Claims payable solely out of the Escrow Fund); and (iv) during the time that property remains in the Escrow Fund, to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the Registration Agreement.
(c) In the event that the Shareholder's Representative dies, is unable or becomes unable to perform his responsibilities hereunder or resigns from such position, the remaining Shareholders shall, by election of the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the shares of Common Stock issued and outstanding immediately prior to the Effective Time, 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.
(d) All decisions and actions by the Shareholders' Representative, including actions under the Registration Agreement, the Escrow Agreement and the defense or settlement of any Parent Claims for which the Shareholders may be required to indemnify members of the Parent Group pursuant to Article 8 hereof (but only with respect to Parent Claims payable solely out of the Escrow Fund), shall be binding upon all of the Shareholders, and no Shareholder shall have the same force right to object, dissent, protest or otherwise contest the same.
(e) Each Shareholder, by virtue of the Merger and effect as if performed his receipt of any Merger Consideration, and each Executive, by executing and delivering the Shareholders themselves. When this Transaction Bonus Agreements, shall be deemed to have agreed, that:
(i) Parent shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative relating to the registration of the Parent Stock or to the settlement of any Parent Claims for indemnification by members of the Parent Group pursuant to Article 8 hereof and the Escrow Agreement or any Transaction Document provides that a determination other actions permitted or required to be taken by the Shareholders' Representative hereunder, and no party hereunder shall have any other cause of action or event is conclusive and binding against any member of the Parent Group for any action taken by any member of the Parent Group in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, such determination, action or event decisions and instructions of the Shareholders' Representative shall be conclusive and binding upon all of the Shareholders. The Shareholders and the Executives and no Shareholder or Executive shall have any cause of action against the Shareholders' Representative shall have all such incidental powers as may be necessary for any action taken or desirable to carry into effect not taken, decision made or instruction given by the Shareholders' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement or the Escrow Agreement by the Shareholders' Representative;
(iii) the provisions of this Section 10.152.8 are independent and severable, including, at the expense of the Shareholders, to retain attorneys, accountants are irrevocable and other advisors to assist him in the performance of his duties hereunder. All such expenses coupled with an interest and shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right enforceable notwithstanding any rights or obligation to, and shall not, represent remedies that any Shareholder or Executive may have in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IXconnection with the transactions contemplated by this Agreement; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).and
(biv) Subject to the provisions of this Section 10.15(b)2.8 shall be binding upon the heirs, legal representatives, successors and assigns of each Shareholder and Executive, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise, and any references in this Agreement to an Executive or the Executives shall mean and include the successors to the Executives' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) Parent shall have no liability for any fees or expenses of the Shareholders' Representative. The reasonable expenses incurred by the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest while acting on behalf of the Company's shares immediately prior Shareholders under the authorization granted in this Section 2.8 shall be borne by the Shareholders pro rata and shall be payable out of the Escrow Fund; PROVIDED, HOWEVER, that the aggregate amount of any payments to the Closing. If the Person who is acting as the Shareholders' Representative is terminated out of the Escrow Fund pursuant to this Section 2.8(f) shall not exceed $10,000. Parent shall be entitled, without making any inquiry as to the validity or replaced by amount of the Shareholders fees or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases expenses to be the Shareholders' Representativereimbursed, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations on the written instructions of the Shareholders' Representative regarding payments in respect of the Shareholders' Representative's fees and (ii) to assume that all actions, decisions and determinations expenses as conclusive evidence of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger right to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxreceive such amounts.
Appears in 1 contract
Samples: Merger Agreement (Mro Software Inc)
Shareholders’ Representative. (a) By the execution and delivery of The Shareholders, by executing this Agreement, subject to hereby irrevocably appoint the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act Shareholders’ Representative as such Shareholder's agent, representative, proxy their agent and attorney-in-fact for purposes of Section 9 and the Escrow 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 it under the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to Parent of the Indemnity Escrow Amount and the Special Taxes Escrow Amount in his capacity as satisfaction of claims by Parent, agree to, negotiate, enter into settlements and compromises of and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such claims, resolve any claim made pursuant to Section 9); and take all actions necessary in the judgment of the Shareholders' Representative) after the Closing Date ’ Representative for the purpose of effecting the consummation accomplishment of the transactions contemplated by this Agreement foregoing. Xxxx Xxxxx & Associates Ltd. hereby accepts its appointment as the Shareholders’ Representative for purposes of Section 9 and the Transaction DocumentsEscrow Agreement. Parent shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to Section 9 and the Escrow Agreement, and exercising, 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 all any Shareholder by the Shareholders’ Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by the rights and powers of the Shareholders hereunder and thereunderShareholders’ Representative, as fully binding upon such Shareholder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authorityany decision, for and on behalf act, consent or instruction of the Shareholders’ Representative, to take all actionsincluding an amendment, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give extension or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf waiver of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to provision of this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense shall constitute a decision of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder final, binding and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all Each of Parent and Purchaser is hereby relieved from any liability to any person for any acts done by it in accordance with such incidental powers as may be necessary decision, act, consent or desirable to carry into effect the provisions of this Section 10.15, including, at the expense instruction of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)’ Representative.
(b) Subject to the provisions of this Section 10.15(b), If the Shareholders' ’ Representative shall serve be unable to fulfill its responsibilities as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest agent of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representativethen Xxxxx Xxxxxxxx shall, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; providedwithin 10 days after such determination, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting appoint a successor Shareholders' Representative (representative reasonably satisfactory to Parent). Any such successor to a shall become the “Shareholders' Representative shall ’ Representative” for purposes of this Agreement be the Shareholders' Representative and from and after such timeSection 9, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of Escrow Agreement and this AgreementSection 10.1.
(c) The Shareholders' ’ Representative shall not be allowed further access to liable for any act done or omitted hereunder as Shareholders’ Representative while acting in good faith and permitted to review in the Surviving Entity's books exercise of reasonable judgment. The Shareholders shall severally indemnify each Shareholders’ Representative and records during normal business hours hold each Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of such Shareholders’ Representative and make copies reasonably required arising out of (i) or in connection with the working papers acceptance or administration of Parent such Shareholders’ Representative’s duties hereunder, including the reasonable fees and the Surviving Entity relating to the Earn Out or expenses of any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimslegal counsel retained by such Shareholders’ Representative.
(d) The provisions set forth in this Section 10.15 Shareholders’ Representative shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof, and the Shareholders’ Representative shall not impose any liability be responsible for the validity or obligation on Parent or the Surviving Entity other than those explicitly set forth in sufficiency of this Agreement. In particularall questions arising under this Agreement, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' ’ Representative may rely on the advice of counsel, and (ii) to assume that all actionsfor anything done, decisions and determinations of omitted or suffered in good faith by the Shareholders' ’ Representative are fully authorized and binding upon based on such advice, the Shareholders' ’ Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger shall not be liable to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxanyone.
Appears in 1 contract
Shareholders’ Representative. (a) By the execution and delivery of this Agreementthe Agreement by the Shareholders, subject to the terms of Section 10.15(b)including counterparts thereof, each Shareholder irrevocably appoints, authorizes constitutes and directs Xxxxxx X. appoints Brad Xxxxxxx to act as such Shareholder's agent, representative, proxy xx the true and lawful agent and attorney-in-fact of such Shareholder (in his capacity as "Shareholders' Representative") after with full powers of substitution to act in the Closing Date for name, place and stead of such Shareholder with the purpose following powers:
(a) To receive, hold and deliver to Buyer the certificates or instruments evidencing the common stock of effecting Company owned by Shareholders, accompanied by executed stock powers, signature guarantees, and any other documents relating thereto on behalf of the Shareholders, including the power to endorse and present any such certificate or stock power or instruments on behalf of the Shareholders;
(b) To execute and deliver all ancillary agreements, certificates, and documents which the Shareholders' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by the terms and provisions of this Agreement;
(c) To receive and provide instructions for all payments and other deliveries made pursuant to this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, other funds payable for and on behalf of the Shareholders;
(d) To act for the Shareholders with regard to all indemnification matters referred to in this Agreement including, without limitation, the power to take consent to settlement of claims and the power to compromise any claim on behalf of each such Shareholder;
(e) To enter into the Escrow Agreement and to serve as the agent of the Shareholders with respect to all actionsmatters thereunder, and to exercise such rightsterminate, power amend or waive any provision of the Escrow Agreement and authority, to pay any expenses reasonably incurred by the Escrow Agent or Shareholders' Representative in connection with the transactions contemplated hereby and thereby and to exercise such rightsEscrow Agreement or matters arising thereunder;
(f) To negotiate, power and authority as are incidental theretoterminate, to represent amend or waive any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service provision of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all incur expenses (including fees of attorneys and accountants) in any way relating to this transaction or any indemnification proceedings relating thereto and deduct such Claims expenses from amounts otherwise payable to the Shareholders; and
(g) To do or refrain from doing any further act or deed on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of which the Shareholders' Representative is irrevocable, and shall be deemed deems necessary or appropriate in their sole discretion relating to be coupled with an interest. Execution the subject matter of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder as fully and thereundercompletely as any Shareholder could do if personally present. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event appointment of the Shareholders' Representative shall be conclusive deemed coupled with an interest and binding shall be irrevocable and the Buyer may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholders' Representative evidenced by a writing as the act of the Shareholder in all matters referred to in this Agreement and the Escrow Agreement. With respect to each Shareholder who is a natural person, the authority conferred by such Shareholder shall not be revoked by such Shareholder's death or physical or mental disability. In the event Shareholders' Representative refuses to serve as Shareholders' Representative or service in such capacity is terminated for any reason, a successor Shareholders' Representative may be designated by a writing executed by the Shareholders who held a majority of the common stock of Company listed on Exhibit 3.01(f) of the Disclosure Schedule. The Shareholders' Representative shall have all such incidental powers as not be responsible to the Shareholders for any loss or damage the Shareholders may be necessary or desirable to carry into effect suffer by reason of the provisions of this Section 10.15, including, at the expense performance of the Shareholders' Representative of his duties under this Agreement, to retain attorneys, accountants and other advisors to assist him than loss or damage arising from willful violation of law or gross negligence in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. BUYER: INFOCURE CORPORATION By: _________________________________ Name-------------------------------------------- Name:---------------------------------- Title:--------------------------------- ADDRESS FOR NOTICE: TitleAddress: NTS ACQUISITION CORP. By2970 Xxxxxxxxx Xxxx, Suite 950 Atlanta, Georgia 30329 Telecopy No.: _________________________________ Name404-000-0000 Attention: Title: ELLIOT LABORATORIESFredxxxxx X. Xxxe, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxChief Executive Officer
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of the execution and delivery approval of this AgreementAgreement and the transactions contemplated hereunder by the Shareholders and without any further action of any of the Shareholders or the Company, subject to Xxxxx Xxx Xx Xxx is hereby appointed as the terms of Section 10.15(b)“Shareholders’ Representative”, each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact for each Shareholder, (in his capacity as Shareholders' Representativei) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or and receive notices and communications to Purchaser for any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising purpose under this Agreement and the Transaction Documents after Additional Agreements, (ii) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or other disputes arising under or related to this Agreement, (iii) to enter into and deliver the Closing Date, the Shareholders' Representative shall act for and Escrow Agreement on behalf of each of the Shareholders, and (iv) to authorize or object to delivery to the extent 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, (v) to act on behalf of Shareholders are asked to execute documents and to take other actions after in accordance with the Closing and do not do so as promptly as possible when requestedprovisions of the Agreement, the Shareholders appoint securities described herein and any other document or instrument executed in connection with the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents Agreement and (vi) to take all such actions deemed necessary or appropriate by in the judgment of the Shareholders' ’ Representative which shall have for the same force and effect as if performed accomplishment of the foregoing. Such agency may be changed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding from time to time upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
no less than twenty (b20) Subject days’ prior written notice to the provisions of this Section 10.15(b)Purchaser, the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' ’ Representative may not be removed unless holders of at least 51% of all of the Company Ordinary 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 Ordinary 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 voluntarily resign without be effective until written notice is delivered to Purchaser. 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 shall constitute notice to or from the Shareholders. The Shareholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative of the Company and shall for purposes be final, binding and conclusive upon each of this Agreement be the Shareholders' . The Shareholders shall severally indemnify the Shareholders’ Representative and from hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and after such time, arising out of or in connection with the term "Shareholders' Representative" as used herein shall refer to any successoracceptance or administration of his duties hereunder. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth Notwithstanding anything in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity 13.15 to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) ’ Representative, in the capacity as such, shall have no obligation or authority with respect to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxany indemnification claims against a Shareholder made by a Purchaser Indemnitee under Section 10.2.
Appears in 1 contract
Samples: Share Exchange Agreement (Ace Global Business Acquisition LTD)
Shareholders’ Representative. (a) By The rights of the execution and delivery of this Agreement, Escrow Participants to receive disbursements from the Escrow Fund pursuant to the Escrow Agreement shall be subject to the terms right of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxxx X. Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as the “Shareholders' ’ Representative”) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take any and all actions, actions and to exercise such rights, power make any and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices all decisions required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any taken or made by the Shareholders, to execute and deliver, ’ Representative under this Agreement or hold in escrow and release, any exhibits or amendments to this the Escrow Agreement, including the Transaction Documents exercise of the right to: (i) give and receive notices and 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 compromises of and comply with court orders with respect to claims for indemnification made by Parent under Article 8; (v) undertake any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Third-Party Claims; (vi) amend or waive the Escrow Agreement and to settle (vii) take all such Claims on behalf of all actions necessary or appropriate in the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency good faith judgment of the Shareholders' ’ Representative is irrevocable, and shall be deemed to be coupled with an interestfor the accomplishment of the foregoing. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions The identity of the Shareholders' ’ Representative taken hereunder may be changed, and thereunder. The Parties agree thata successor Shareholders’ Representative may be appointed, as from time to all matters arising under this Agreement and time (including in the Transaction Documents after event of the Closing Dateresignation or the death, the Shareholders' Representative shall act for and on behalf disability or other incapacity of the Shareholders’ Representative) by Xxxxxx Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint any such successor shall succeed the Shareholders' ’ Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' ’ Representative which hereunder. No bond shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event be required of the Shareholders' ’ Representative, and the Shareholders’ Representative shall be conclusive reimbursed for costs and binding upon expenses (including overhead expenses) incurred in such capacity from the ShareholdersRepresentative Reimbursement Amount. The Shareholders' Representative shall have all such incidental powers as may be necessary From and after the Effective Time, a decision, act, consent or desirable to carry into effect the provisions of this Section 10.15, including, at the expense instruction of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses ’ Representative shall be shared pro rata among all of the Shareholders based final, binding and conclusive upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Escrow Participant.
(b) Subject At the Closing, Parent shall make a cash payment to the provisions Shareholders’ Representative, by wire transfer of this Section 10.15(b), immediately available funds to an account designated by the Shareholders' ’ Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the ClosingClosing Date, in the amount of $500,000 (the “Representative Reimbursement Amount”). If the Person who is acting as The Representative Reimbursement Amount shall be held by the Shareholders' ’ Representative is terminated or replaced by the Shareholders or is unable or unwilling for reimbursement payable to continue to serve as the Shareholders' Representative, ’ Representative under this Section 9.1 (the “Representative Reimbursement Fund”). Parent and Merger Sub shall have no further obligation or otherwise ceases liability with respect to be the Representative Reimbursement Amount other than payment of the same to the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior ’ Representative pursuant to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parentthis Section 9.1(b). Any successor to a Shareholders' portion of the Representative shall for purposes of this Agreement be Reimbursement Fund that has not been utilized by the Shareholders' ’ Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer pursuant to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this AgreementAgreement on or prior to the date specified by the Shareholders’ Representative on or after the Expiration Date, shall be paid by the Shareholders’ Representative to the Escrow Agent for distribution to the Escrow Participants pro rata in accordance with their respective Escrow Participation Percentages.
(c) The Shareholders' ’ Representative shall not be allowed further access to liable for any liability, loss, damage, penalty, fine, cost or expense incurred without gross negligence by the Shareholders’ Representative while acting in good faith and permitted to review in the Surviving Entity's books exercise of its good faith judgment and records during normal business hours and make copies reasonably required arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (i) the working papers of Parent and the Surviving Entity relating it being understood that any act done or omitted pursuant to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsadvice of counsel shall be conclusive evidence of such good faith).
(d) The provisions set forth in Shareholders’ Representative shall be entitled to deduct and recover from any amounts payable to the Escrow Participants pursuant to this Section 10.15 shall not impose any liability or obligation on Parent Agreement or the Surviving Entity other than those explicitly set forth Escrow Agreement any costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of this Agreement. In particular, notwithstanding in any case any notice received by Parent Agreement or the Surviving Entity to Escrow Agreement (including the contraryhiring of legal counsel and the incurring of legal fees and costs), after the Representative Reimbursement Fund has been exhausted.
(e) From and after the Effective Time, Parent and the Surviving Entity Corporation shall promptly afford to the Shareholders’ Representative reasonable access to the books, records (including accountants’ work papers) and employees of Parent and the Surviving Corporation to the extent reasonably determined by the Shareholders’ Representative to be fully protected necessary to permit it to investigate or determine any matter relating to (i) its rights or obligations or the rights or obligations of the Escrow Participants under this Agreement or the Escrow Agreement, or (ii) the rights or obligations (under any law or otherwise) of the Escrow Participants with respect to any period ending on or before the date of this Agreement. Unless otherwise consented to in relying upon writing by the Shareholders’ Representative, neither Parent nor the Surviving Corporation shall, for a period of four years after the date of this Agreement, destroy, alter or otherwise dispose of any of the books and records of the Surviving Corporation relating in whole or in part to any period prior to the date of this Agreement without first offering to surrender to the Shareholders’ Representative such books and records or any portion thereof which Parent or the Surviving Corporation may intend to destroy, alter or otherwise dispose of.
(f) Parent may rely and shall be entitled (i) protected in acting, or refraining from acting, upon any written notice, instruction or request furnished to rely upon actions, decisions it hereunder or under the Escrow Agreement and determinations of reasonably believed by Parent to be genuine and to have been signed or presented by the Shareholders' ’ Representative and as if such written notice, instruction or request had been furnished to it by all the Escrow Participants.
(iig) Parent hereby consents to assume that all actions, decisions and determinations of the retention by the Shareholders' ’ Representative are fully authorized of Xxxxxxxx & Xxxxxxxx LLP as counsel following the Closing, notwithstanding that Xxxxxxxx & Xxxxxxxx LLP has represented Company in connection with the transactions contemplated by this Agreement, including the negotiation of this Agreement, and binding upon waives any right Parent or the Shareholders' Representative and the Shareholders. The Parties hereto Surviving Corporation may have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxobject to such representation.
Appears in 1 contract
Samples: Merger Agreement
Shareholders’ Representative. (a) By The Company and the execution Significant Shareholders hereby authorize, direct and delivery of this Agreement, subject to appoint the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Shareholders' Representative to act as such Shareholder's sole and exclusive agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation and representative of the transactions contemplated by Significant Shareholders and the other holders of Company Shares, Company Options and Warrants, with full power of substitution with respect to all matters under this Agreement and the Transaction DocumentsEscrow Agreement, including, without limitation, determining, giving and exercisingreceiving notices and processes hereunder and thereunder, receiving certain distributions to or for the benefit of the holders of the Company Shares, the Company Options and the Warrants, entering into any documents required or permitted under Section 8, contesting and settling any and all claims for indemnification pursuant to Section 8 hereof, resolving any other disputes hereunder (including disputes with respect to purchase price adjustments or calculations), performing the duties expressly assigned to the Shareholders' Representative hereunder and thereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of all any holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Section 8 and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person's individual capacity, and no Person shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Significant Shareholders hereunder or pursuant to the Escrow Agreement or any action which Significant Shareholders, at their election, have the rights right to take hereunder or thereunder, shall be taken only by the Shareholders' Representative, and powers no Significant Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by the Buyer to the Shareholders' Representative pursuant to Sections 2.3(c), 2.5(d) and 2.8 above shall be made on behalf of the Shareholders hereunder holders of Company Shares, Company Options and thereunderWarrants and shall constitute full performance of the obligations of the Buyer to the Shareholders' Representative pursuant to such sections with respect to such amounts. Without limiting The Buyer shall not be liable for allocation of particular deliveries and payments of such amounts by the generality of Shareholders' Representative. Notwithstanding the foregoing, the Shareholders' Representative shall have full power and authority, for and not take any action on behalf of the Significant Shareholders without the approval of such action by a majority of the Significant Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. .
(b) The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed as each Significant Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to be coupled represent such Significant Shareholder with an interest. Execution of regard to this Agreement by or the Shareholders shall constitute agreement to be bound by the actions Escrow Agreement. The appointment of the Shareholders' Representative taken hereunder as attorney-in-fact pursuant hereto is coupled with an interest and thereunderis irrevocable. The Parties agree thatobligations of each Significant Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, as death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to all matters arising such Significant Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Significant Shareholders of the whole or any fraction of its interest in any payment due to it under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Escrow Agreement.
(c) The Shareholders' Representative hereby accepts the foregoing appointment and agrees to serve as Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the holders of the Company Shares, the Company Options and the Warrants, out of the Net Working Capital Holdback, of reasonable out of pocket expenses incurred by the Shareholders' Representative in its capacity as such. Each of the Significant Shareholders and the Company hereby acknowledges and agrees, that in appointing Shareholders' Representative as their representative pursuant to the terms and provisions of this Section 10.17, and as specified herein, the Shareholders' Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the Significant Shareholders or the holders of Company Shares, Company Options or Warrants whatsoever with respect to their actions, decisions and determinations, and shall be allowed further access entitled to assume that all actions, decisions and permitted to review determinations are fully authorized by each and every one of the Surviving Entity's books and records during normal business hours and make copies reasonably required Significant Shareholders, the holders of (i) Company Shares, the working papers holders of Parent the Company Options and the Surviving Entity relating to holders of the Earn Out or any Claims and (ii) any supporting schedulesWarrants; provided, supporting analyses and other supporting documentation relating to that such actions take by the Earn Out or any ClaimsShareholders' Representative have been approved by a majority of the Significant Shareholders.
(d) The provisions set forth in of this Section 10.15 10.17 shall not in no way impose any liability or obligation obligations on Parent or the Surviving Entity other than those explicitly set forth in this AgreementBuyer. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity Buyer to the contrarycontrary and absent Buyer's bad faith or willful misconduct, Parent and the Surviving Entity Buyer (i) shall be fully protected in relying upon and shall be entitled (i) to rely upon upon, shall have no liability to the Significant Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and the FS Management Company and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative and the FS Management Company are fully authorized by all of the Significant Shareholders and binding upon the holders of the Company Shares, the Company Options and the Warrants.
(e) With respect to the rights and obligations of the Shareholders' Representative relating to the Net Working Capital Holdback, the Shareholder Holdback and the Contingent Purchase Price in this Agreement, the FS Management Company is hereby substituted for the Shareholders. The Parties hereto have caused ' Representative throughout this Agreement Agreement, and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor FS Management Company hereby accepts such substitution and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxappointment for all such purposes.
Appears in 1 contract
Samples: Merger Agreement (Teleflex Inc)
Shareholders’ Representative. (a) By the execution and delivery of executing this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes constitutes and directs appoints Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the true and lawful agent and attorney-in-fact (in his capacity hereinafter referred to as Shareholdersthe "SHAREHOLDERS' RepresentativeREPRESENTATIVE") after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentseach Shareholder, and exercising, on behalf of all Shareholders, the rights and with full powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholderssubstitution, to take all actionsact in the name, place and to exercise such rights, power and authority, in connection stead of each Shareholder with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating respect to the transactions contemplated hereby or therebyin accordance with the provisions of this Agreement and the Escrow Agreement, including, without limitation, to conduct grant waivers on behalf of each Shareholder or cease to conduct the defense of all Claims against any Shareholder in connection with enter into amendments to this Agreement and to settle do or refrain from doing all such Claims on behalf of further acts and things, to execute all the Shareholders such certificates, instruments and exercise any and all rights that the Shareholders are permitted other documents, as such Shareholders' Representative may deem necessary or required to do or exercise under Article IX, and appropriate in connection with any Claim against or by of the Shareholders transactions contemplated under this Agreement or the Escrow Agreement. The appointment , to give and agency receive notices and communications, to authorize delivery to Purchaser of the Escrowed Shares or other property from the Escrow Account in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Shareholders' Representative is irrevocable, and shall for the accomplishment of the foregoing. Such agency may be deemed to be coupled with an interest. Execution of this Agreement changed by the Shareholder from time to time upon not less than thirty days prior written notice to Purchaser; PROVIDED, HOWEVER, that the Shareholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Account 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 Escrow Account. The Shareholders shall constitute agreement agree that any such action, if material to be bound by the actions rights and obligations of the Shareholders in the reasonable judgment of the Shareholders' Representative Representative, shall be taken hereunder and thereunderin the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event appointment of the Shareholders' Representative shall be conclusive deemed coupled with an interest and binding shall be irrevocable, and Purchaser, Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholders' Representative as the act of the Shareholders in all matters referred to in this Agreement. The Shareholders' Representative shall have all such incidental powers not be liable for any act done or omitted hereunder as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have while acting in good faith and in the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless exercise of any provisions of this Section 10.15(a)reasonable judgment.
(b) Subject The power of attorney granted in this section is not intended to be a continuing power of attorney within the provisions meaning of this Section 10.15(band governed by the Substitute Decisions Act (Ontario) or any similar power of attorney under equivalent legislation in any other jurisdiction (a "CPOA"), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes execution of this Agreement shall not terminate any such CPOA granted by any Shareholder previously and shall not be terminated by the Shareholders' Representative and from and after such time, execution by that Shareholder in the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment future of a successor shall be effective unless such successor CPOA, and each Shareholder hereby agrees not to take any action in writing to be bound the future (other than as expressly permitted by this section) which results in the terms termination of this Agreementpower of attorney.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Share Purchase Agreement (Ticketmaster Online Citysearch Inc)
Shareholders’ Representative. (a) By Each SNL Indemnifying Party by virtue of the execution approval and delivery adoption of this AgreementAgreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, subject to appointed and empowered the terms Shareholders’ Representative, for the benefit of Section 10.15(b)the SNL Indemnifying Parties, each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact (to act for and on behalf of each SNL Indemnifying Party, in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting 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 SNL Indemnifying Party) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby 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 SNL 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 SNL Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) 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 SNL Indemnifying Parties, and receive process on behalf of any or all SNL 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 refrain from enforcing any right of the SNL 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 or by the SNL 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 Transaction Documentsother agreements, documents and exercisinginstruments executed in connection herewith; (v) to engage special counsel, on behalf of all Shareholders, the rights accountants and powers of the Shareholders hereunder other advisors and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and incur such other expenses on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and SNL Indemnifying Parties in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters matter arising under this Agreement and the Transaction Documents after other agreements, documents and instruments executed in connection herewith; and (vi) to collect, hold and disburse any amounts, including any portion of the Closing DateEscrow Shares received by Shareholders’ Representative pursuant to the terms hereof in accordance with the terms of this Agreement and the other agreements, documents and instruments executed in connection herewith. Notwithstanding the foregoing, the Shareholders' ’ Representative may resign at any time by providing written notice of intent to resign to the SNL Indemnifying Parties, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the SNL Indemnifying Parties. By executing this Agreement, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to act for as Shareholders’ Representative as attorney-in-fact and agent on behalf of the ShareholdersSNL Indemnifying Parties in accordance with the terms of this Agreement and (y) agrees to perform its obligations under, and otherwise comply with, this Section 10.6.
(b) The Shareholders’ Representative shall be entitled to the extent Shareholders are asked to execute documents receive reimbursement from, and to take other actions after the Closing and do not do so as promptly as possible when requestedbe indemnified by, the Shareholders appoint the Shareholders' Representative SNL Indemnifying Parties for certain expenses, charges and liabilities as their limited irrevocable attorney provided below. In connection with this Agreement, and in fact exercising or failing to execute exercise all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to any SNL 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 (ii) the Shareholders’ Representative shall be entitled to rely on the 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 determinationadvice shall in no event subject the Shareholders’ Representative to liability to any SNL Indemnifying Parties. Each SNL 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 event proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholders' ’ Representative hereunder. The foregoing indemnification shall be conclusive and binding upon not apply in the event of 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 the SNL Indemnifying Parties as to the existence of a deficiency toward the payment of any such indemnification amount, each SNL Indemnifying Party shall promptly deliver to the Shareholders’ Representative full payment of such SNL Indemnifying Party’s share of the amount of such deficiency in proportion to such SNL Indemnifying Party’s Pro Rata Share. The Shareholders' ’ Representative shall only have all such incidental powers as the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Shareholders’ Representative may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain engage attorneys, accountants and other advisors to assist him in professionals and experts at the performance of his duties hereunder. All such expenses shall be shared pro rata among all cost and expense of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)SNL Indemnifying Parties.
(bc) Subject All of the indemnities, immunities and powers granted to the provisions of Shareholders’ Representative under this Section 10.15(b), the Shareholders' Representative Agreement shall serve as such from and after survive the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at and/or any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms termination of this Agreement.
(cd) CHC and the Company shall have the right to rely 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 SNL Indemnifying Parties.
(e) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the working papers death, incompetency, bankruptcy or liquidation of Parent and the Surviving Entity relating to the Earn Out or any Claims SNL Indemnifying Party and (ii) shall survive the consummation of the Share Purchase, and any supporting schedules, supporting analyses and other supporting documentation relating action taken by the Shareholders’ Representative pursuant to the Earn Out authority granted in this Agreement shall be effective and absolutely binding on each SNL Indemnifying Party notwithstanding any contrary action of or any Claimsdirection from such SNL Indemnifying Party, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(df) The provisions set forth Each of SNL and CHC acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in this Section 10.15 connection with the consummation of the transactions contemplated hereby. Accordingly, each of SNL and CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a SNL Shareholder (if applicable), the Shareholders’ Representative shall have no liability to, and shall not impose be liable for any liability Losses of, any of SNL or obligation on Parent CHC or the Surviving Entity other than those explicitly set forth to any Person in this Agreement. In particular, notwithstanding in connection with any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations obligations of the Shareholders' ’ Representative and (ii) under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to assume that all actions, decisions and determinations the extent such Losses shall be proven to be the direct result of fraud by the Shareholders' ’ Representative are fully authorized and binding upon in connection with the performance by the Shareholders' ’ Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxits obligations hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (COMSovereign Holding Corp.)
Shareholders’ Representative. (a) By Each Shareholder hereby irrevocably makes, constitutes and appoints Xxxxx X. Xxxxx as the execution Shareholders’ Representative and delivery of this Agreementas his, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes her or its exclusive agent and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose with full power of effecting substitution 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 this Agreement Agreement, hereby ratifying and confirming all that the Transaction DocumentsShareholders’ Representative may do or cause to be done by virtue hereof, including but not limited to: (i) make all decisions relating to the determination of the purchase price adjustment under Section 2.3; (ii) subject to the terms of this Agreement, make all decisions relating to the distribution of any amounts payable or distributable to such Shareholder hereunder; (iii) execution and exercisingdelivery, on behalf of all Shareholderssuch Shareholder, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and any document required to be executed by or on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment ; (iv) receipt and agency forwarding of the Shareholders' Representative is irrevocable, notices and shall be deemed communications pursuant to be coupled with an interest. Execution this Agreement; (v) administration of this Agreement by Agreement, including the Shareholders shall constitute agreement resolution of any dispute or claim; (vi) the resolution, settlement, or compromise of any claim for indemnification asserted against such Shareholder pursuant to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising Section 9.4(a) or elsewhere under this Agreement and the Transaction Documents after the Closing DateAgreement; (vii) asserting, the Shareholders' Representative shall act for and on behalf of the Shareholderssuch Shareholder, claims for indemnification under Section 9.4(b) and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requestedresolving, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute settling or compromising all such documents and claims; (viii) terminate or consent or agree to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When any termination of this Agreement or any Transaction Document provides that a determination provision hereof; (ix) consent or agree to any other action amendment to this Agreement, or event is conclusive waiver of any of its terms and binding upon conditions; and (x) take all actions necessary or appropriate in the Shareholders, such determination, action or event judgment of the Shareholders' ’ Representative shall be conclusive and binding upon for the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense accomplishment of the Shareholdersforegoing, in each case without having to retain attorneys, accountants and seek or obtain the consent of such Shareholder or other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent Person under any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)circumstance.
(b) Subject Buyer may rely upon the full power and authority of Shareholders’ Representative to act as agent of each Shareholder, and shall not be liable in any way whatsoever for any action Buyer takes or omits to take in reliance upon such power and authority. Each Shareholder agrees that the appointment of Shareholders’ Representative and such agency, proxy and power of attorney under this Agreement are coupled with an interest and shall be irrevocable by any Shareholder in any manner and for any reason. This agency, proxy and power of attorney shall not be affected by the death, disability, incapacity or bankruptcy of the Shareholder pursuant to any applicable law or otherwise. Each Shareholder acknowledges and agrees that upon execution of this Agreement, any delivery by the Shareholders’ Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Shareholders’ Representative or any decisions made by the Shareholders’ Representative pursuant to this Section 6.15, such Shareholder shall be bound by such documents or decision as fully as if such Shareholder had executed and delivered such documents or made such decisions.
(c) Shareholders’ Representative acknowledges that he has carefully read and understands this Agreement, 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 the provisions of this Section 10.15(b)Agreement.
(d) Each Shareholder agrees that in the event that Xx. Xxxxx or his successor refuses to serve, or is no longer capable of serving, as Shareholders’ Representative, the Shareholders' Representative Shareholders shall appoint another person to serve as such from and after Shareholders’ Representative by a vote of the Closing Date until Shareholders who hold or held, as the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative case may be replaced or terminated at any time by those Shareholders holding be, a majority in interest of the Company's shares outstanding Shares of CECity immediately prior to the Closing. If Each Shareholder agrees that Xx. Xxxxx or his successor may be removed from serving as Shareholders’ Representative by a vote of the Person Shareholders who is acting hold or held, as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representativecase may be, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares outstanding Shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(ce) The Under no circumstances shall Shareholders' ’ Representative shall be allowed further access have any liability, under any fiduciary theory or otherwise, to the Shareholders for any act or omission to act of Shareholders’ Representative in such capacity, unless the Shareholder asserting such liability is able to prove that Shareholders’ Representative was guilty of gross negligence or willful misconduct. Each Shareholder shall, severally but not jointly and permitted to review on a pro rata basis based upon their respective Pro Rata Portion of the Surviving Entity's books and records during normal business hours and make copies reasonably required of Shares, (i) the working papers of Parent indemnify, save and the Surviving Entity relating hold harmless Shareholders’ Representative from and against any and all Losses incurred in connection with, arising out of, resulting from, or incident to the Earn Out any act or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating omission to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations act of the Shareholders' ’ Representative in his capacity as such, except to the extent caused by the willful misconduct, gross negligence or bad faith of the Shareholders’ Representative and (ii) to assume that reimburse Shareholders’ Representative for all actionsout-of-pocket expenses (including reasonable fees and expenses of attorneys, decisions accountants and determinations of the experts) incurred by Shareholders' ’ Representative are fully authorized and binding upon the in connection with performing his duties as Shareholders' ’ Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxhereunder.
Appears in 1 contract
Shareholders’ Representative. (a) By In addition to the other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the benefits thereof, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement, subject to the terms of Section 10.15(b), each Company Shareholder hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoints Xxxxxxxx Xxx as such Shareholder's agent, representative, proxy and attorney-in-fact (and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in his capacity the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation ’ Representative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the Transaction Documentsdeath, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and exercising, agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of all the Company Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have has full power and authority, for and on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the Shareholders, terms and provisions of this Agreement and the documents to take all actions, be executed and to exercise such rights, power and authority, delivered by the Company Shareholders in connection with the transactions contemplated hereby and thereby and to exercise such rightsherewith, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to (ii) execute and deliver, or hold in escrow deliver and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other receive deliveries of all agreements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments, and other documents required or waivers relating permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts 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, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby hereby, (ix) deliver to Parent any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or thereby, to conduct waived and (x) take all actions necessary or cease to conduct appropriate in the defense judgment of all Claims against any Shareholder the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement. 75
(b) Service by the Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of Parent and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of Parent and the Company shall be entitled to settle all such Claims rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of all any Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder. 76
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and exercise a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided that until such notice is received, Parent and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the Company Shareholders (in accordance with their respective Pro Rata Shares) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Shares) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Share), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders are permitted against all losses, including costs of defense, paid or required to do or exercise under Article IX, and incurred in connection with any Claim against action, suit, proceeding or claim to which the Shareholders’ Representative is made a party by the Shareholders under this Agreement. The appointment and agency reason of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of fact that the Shareholders' ’ Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is was acting as the Shareholders' ’ Representative is terminated or replaced by the Shareholders or is unable or unwilling pursuant to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingthis Agreement; provided, however, that the Shareholders' ’ Representative shall not voluntarily resign without be entitled to indemnification hereunder to the Shareholders first selecting extent it is finally determined in a successor court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders' ’ Representative (reasonably satisfactory to Parent)constituted actual fraud or were taken or not taken in bad faith. Any successor to a The Shareholders' ’ Representative shall for purposes be protected in acting upon any notice, statement or certificate believed by the Shareholders’ Representative 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. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to Parent or any Affiliate of Parent by reason of this Agreement be or the performance of the Shareholders' Representative and from and after such time’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the term "resignation or removal of Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by ’ Representative or the terms termination of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx77
Appears in 1 contract
Samples: Merger Agreement (Mountain Crest Acquisition Corp. III)
Shareholders’ Representative. (a) By Cirronet and Xxxxxxx hereby appoint the execution Shareholders’ Representative, and delivery the Shareholders’ Representative hereby accepts such appointment, as the representative of this the Cirronet Shareholders, the Cirronet Optionholders and Xxxxxxx for the limited purposes set forth herein, in the Letter of Transmittal, the Representative Appointment, the Earnout Agreement, subject the Registration Rights Agreement and the Parent Promissory Note. The parties hereto agree and acknowledge that (i) the Shareholders’ Representative’s power and authority to perform the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes duties and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after exercise the Closing Date for the purpose of effecting the consummation rights of the transactions Shareholders’ Representative as contemplated by this Agreement (which shall include those matters set forth in the Letter of Transmittal and the Transaction Documents, and exercising, on behalf of all ShareholdersRepresentative Appointment), the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoingEarnout Agreement, the Registration Rights Agreement and the Parent Promissory Note are an integral part of this Agreement and have been bargained for by Parent and Cirronet; and (ii) the Shareholders' ’ Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise be vested with such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)hereby.
(b) Subject Each Cirronet Shareholder that executes and delivers a Letter of Transmittal or accepts any portion of the Final Merger Consideration and each Cirronet Optionholder that executes and delivers a Representative Appointment or accepts any Cirronet Assumed Option or Cirronet Exchanged Option (or any portion of the Earnout Consideration pursuant to the provisions of this Section 10.15(b), Earnout Agreement) shall be consenting to the Shareholders' Representative shall serve as such from ’ Representative’s appointment and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing agreeing to be bound by all actions taken by the terms Shareholders’ Representative in his or her capacity as the Shareholders’ Representative as contemplated hereby and in the Earnout Agreement, Registration Rights Agreement and Parent Promissory Note, and neither Parent nor the Surviving Corporation shall be liable to any of this Agreementthe Cirronet Shareholders, Cirronet Optionholder or Xxxxxxx for any action taken or omitted to be taken by Parent or the Surviving Corporation in reliance on, or for any action taken or omitted to be taken by, the Shareholders’ Representative as contemplated hereby.
(c) The Parent shall provide the Shareholders' ’ Representative, at Parent’s expense, with such secretarial, clerical, administrative and office support as the Shareholders’ Representative shall be allowed further access may reasonably request in order for the Shareholders’ Representative to and permitted to review perform the Surviving Entity's books and records during normal business hours and make copies reasonably required duties or exercise the rights of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedulesShareholders’ Representative as contemplated hereby, supporting analyses including, without limitation, handling mailings, payments and other supporting documentation relating to distributions and correspondence with the Earn Out Cirronet Shareholders, Cirronet Optionholders, Xxxxxxx or any ClaimsParent, all as Shareholders’ Representative may reasonably request and direct.
(d) The provisions set forth Shareholders’ Representative shall be entitled to reimbursement in the manner provided in this Section 10.15 shall not impose 1.10(d) for all reasonable out-of-pocket expenses incurred by the Shareholders’ Representative in connection with the performance of the duties or exercise of the rights of the Shareholders’ Representative as contemplated hereby, including, without limitation, the reasonable fees of any liability legal counsel, accountants or obligation on other professional advisors retained by the Shareholders’ Representative in connection with performing such duties or exercising such rights (collectively, the “Expenses”). The Shareholders’ Representative may submit to Parent all invoices and similar documentation evidencing the Expenses. On each date upon which an amount becomes payable by Parent under the Parent Promissory Note or the Surviving Entity other than those explicitly set forth in this Earnout Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of deduct from such amount payable all Expenses for which the Shareholders' ’ Representative and has not been reimbursed, (ii) pay the amount of such Expenses to assume that all actions, decisions and determinations of the Shareholders' ’ Representative, and (iii) pay the remainder of such amount payable under the Parent Promissory Note or Earnout Agreement, as applicable, in accordance with the terms thereof. Any such payment to Shareholders’ Representative are fully authorized and binding upon for reimbursement of Expenses shall be applied first to reduce the Shareholders' Representative and amount of any Earnout Consideration payable pursuant to the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger Earnout Agreement, then to be executed as of any accrued interest on the Parent Promissory Note outstanding on the date first written aboveof such payment until such interest is reduced to zero, followed by a reduction in the principal amount thereof. NATIONAL TECHNICAL SYSTEMSAnything in this Section 1.10(d) to the contrary notwithstanding, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxParent shall be obligated to reimburse Expenses only upon satisfaction of all the following conditions:
Appears in 1 contract
Shareholders’ Representative. (a) By Each Shareholder constitutes and appoints the Shareholders’ Representative as its Representative and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such Shareholders’ behalf in the absolute discretion of Shareholders’ Representative with respect to all matters relating to this Agreement, including execution and delivery of this Agreementany amendment, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliversupplement, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense modification of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination and any waiver of any claim or right arising out of this Agreement or the provision of any consent or agreement hereunder; and
(ii) in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other action instruments contemplated by or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable deemed advisable to carry into effect effectuate the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)6.05.
(b) Subject This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and will not be terminated by any act of any Shareholder or by operation of law, whether by the death or incapacity of any Shareholder or by the occurrence of any other event. Each Shareholder hereby consents to the provisions taking of any and all actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 10.15(b), the 6.05. Each Shareholder agrees that Shareholders' ’ Representative shall serve as such from have no obligation or liability to any Person for any action taken or omitted by Shareholders’ Representative in good faith, even if taken or omitted negligently, and after each Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall pay to Shareholders’ Representative the Closing Date until the earlier of his removal amount of, or the completion of his obligations hereunder. The reimburse Shareholders' ’ Representative for, any Loss that Shareholders’ Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representativesuffer, sustain, or otherwise ceases become subject to be the as a result of any claim made or threatened against Shareholders' Representative, ’ Representative in his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" capacity as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementsuch.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and Company shall be entitled (i) to rely upon actionsany document or other paper delivered by Shareholders’ Representative as being authorized by Shareholders, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger Company shall not be liable to any Shareholder for any action taken or omitted to be executed as of taken by the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. XxxxCompany based on such reliance.
Appears in 1 contract
Shareholders’ Representative. (a) By Each Seller has constituted, appointed and empowered effective from and after the execution and delivery date of this Agreementsuch consent, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act Person designated as such Shareholder's agentby the Board as the Shareholders’ Representative, representative, proxy for the benefit of the Sellers and the exclusive agent and attorney-in-fact (to act on behalf of each Seller, in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting connection with and to facilitate the consummation of the transactions contemplated by hereby, which shall include the power and authority to: (i) enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the Transaction Documentstransactions provided for herein, and exercising, on behalf of to take any and all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, actions which the Shareholders' ’ Representative shall have full power and authority, believes are necessary or appropriate under this Agreement for and on behalf of the ShareholdersSellers including, to take all actionsconsenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and to exercise their respective Representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert any Shareholder from and claim or institute any Action; (B) investigate, defend, contest or litigate any Third Party Claim pursuant to Section 9.5 or any other Action or investigation initiated by Buyer and, after the ClosingClosing Date, to give the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any or all Sellers in any such Action or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such Third Party Claim or amendments other Action 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 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; (ii) to refrain from enforcing any right of the Sellers arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the Transaction Documents part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or any 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; (iii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, statementsletters and other writings, noticesand, approvalsin general, extensions 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 waivers relating proper or convenient in connection with or to carry out the transactions contemplated hereby or therebyby this Agreement; (iv) to engage special counsel, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement accountants and to settle all other advisors and incur such Claims other expenses on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and Sellers in connection with any Claim against or by the Shareholders matter arising under this Agreement, which such expenses the Shareholders’ Representative is authorized to pay from the Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or amendments of this Agreement or the Escrow Agreement.
(b) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Sellers for certain expenses, charges and liabilities as provided below. The appointment In connection with this Agreement, and agency in exercising or failing to exercise all or any of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to any Sellers 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 (ii) the Shareholders’ Representative shall be entitled to rely on the 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 is irrevocablepursuant to such advice shall in no event subject the Shareholders’ Representative to liability to any Sellers. Each Seller shall indemnify, severally and shall be deemed not jointly, based on such Seller’s Payout Percentage, the Shareholders’ Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, 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 Action, investigation, challenge, or in connection with any appeal thereof, relating to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions acts or omissions of the Shareholders' ’ Representative taken hereunder and thereunderhereunder. The Parties agree thatforegoing indemnification shall not apply in the event of any Action 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 the Sellers as to all matters arising the existence of a deficiency toward the payment of any such indemnification amount, each Seller shall promptly deliver to the Shareholders’ Representative full payment of his, her or its Payout Percentage of the amount of such deficiency.
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement and shall survive the Transaction Documents Closing and/or any termination of this Agreement.
(d) Buyer and, after the Closing Date, the Company shall have the right to rely upon all actions taken or omitted to be taken by the Shareholders' ’ Representative pursuant to this Agreement, all of which actions or omissions shall act be legally binding upon the Sellers.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Seller and (ii) shall survive the consummation of the Transactions, and any action taken by the Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on behalf each Seller notwithstanding any contrary action of or direction from such Seller, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(f) Each of the Company and Buyer acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company and to Buyer acknowledges and agrees that, other than in the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so Shareholders’ Representative’s role as promptly as possible when requesteda Seller, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' ’ Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation no liability to, and shall notnot be liable for any Losses of, represent any Shareholder of the Company or Buyer in Indemnification Claims involving connection with any such Shareholder's several, as opposed to his joint, liability obligations of the Shareholders’ Representative under Article IX; this Agreement or otherwise in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions respect of this Section 10.15(a).
(b) Subject Agreement or the transactions contemplated hereby, except to the provisions of this Section 10.15(b), the Shareholders' Representative extent such Losses shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases proven to be the Shareholders' Representative, his successor shall promptly be appointed direct result of willful misconduct by the Shareholders holding a majority Shareholders’ Representative in interest connection with the performance of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementits obligations hereunder.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Shareholders’ Representative. (a) By Each of the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably Shareholders hereby appoints, authorizes and directs Xxxxxx X. effective upon the Reorganization HoldCo hereby appoints, Xxxxxxx to act Xxxxxxx as such Shareholder's agent, representative, proxy its true and lawful attorney-in-fact and agent (in his capacity as the “Shareholders' ’ Representative) after ”), with full power of substitution or resubstitution, to act solely and exclusively on behalf of HoldCo and each of the Closing Date for the purpose of effecting the consummation of Shareholders with respect to the transactions contemplated by this Agreement and the Transaction Documents, and exercising, to act on behalf of all Shareholders, the rights HoldCo and powers each of the Shareholders hereunder in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and thereunder. Without limiting things, and to execute all such documents (including, without limitation, the generality Escrow Agreement) as the Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for HoldCo and each of the foregoingShareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the Shareholders' Representative shall have full power and authority, for and to compromise any indemnity claim on behalf of HoldCo and each of the Shareholders, ;
(ii) to take act for HoldCo and each of the Shareholders with regard to matters pertaining to litigation;
(iii) to execute and deliver all actions, and to exercise such rights, power and authority, documents in connection with the transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and thereby give receipts for funds;
(v) to receive funds for the payment of expenses of HoldCo and each of the Shareholders and apply such funds in payment for such expenses;
(vi) to exercise such rights, power do or refrain from doing any further act or deed on behalf of HoldCo and authority each of the Shareholders that the Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as are incidental thereto, fully and completely as HoldCo and each of the Shareholders could do if personally present; and
(vii) to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against claims under this Agreement.
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. Any action taken by the Shareholders’ Representative must be in writing and must be signed by the Shareholders’ Representative. All notices required to be made or delivered by Buyer to the Company and HoldCo and each of the Shareholders described above shall be made to the Shareholders’ Representative for the benefit of HoldCo and each of the Shareholders and shall discharge in full all notice requirements of Buyer, as applicable, to HoldCo and each of the Shareholders with respect thereto. By appointment of the Shareholders’ Representative, HoldCo and each of the Shareholders thereby confirm all that the Shareholders’ Representative shall do or cause to be done by virtue of his appointment as the representative of HoldCo and each of the Shareholders hereunder. The Shareholders’ Representative shall act for HoldCo and each of the Shareholders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative believes to be in the best interest of HoldCo and each of the Shareholders and consistent with the obligations of HoldCo and each of the Shareholders under this Agreement. The appointment and agency , but the Shareholders’ Representative shall not be responsible to HoldCo or any of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution Shareholders for any damages which any of this Agreement HoldCo or any of the Shareholders may suffer by the Shareholders shall constitute agreement to be bound by the actions performance of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising such duties under this Agreement and the Transaction Documents after the Closing DateAgreement, the Shareholders' Representative shall act for and on behalf other than damages arising from willful violation of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary applicable Law or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him gross negligence in the performance of his such duties hereunderunder this Agreement. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the The Shareholders' ’ Representative shall not have the right any duties or obligation toresponsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder be read into this Agreement or shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), otherwise exist against the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' ’ Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) If at any time there is no Shareholders’ Representative, the Shareholders will appoint a Shareholders’ Representative within 15 calendar days. If the Shareholders fail to so appoint a Shareholders’ Representative, Xxxx X. Xxxxxxx will be the replacement Shareholders’ Representative. The Shareholders may appoint a replacement Shareholders' ’ Representative shall at any time by delivery to Buyer of a writing executed by each of the Principal Shareholders. If at any time there is no Shareholders’ Representative, notice to CHWWA will be allowed further access deemed adequate notice as if it had duly been given to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claimsa Shareholders’ Representative.
(d) The provisions set forth in this Section 10.15 Shareholders’ Representative shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particularbe entitled to rely, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying relying, upon any statements furnished to it by HoldCo and each of the Shareholders, Buyer or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall be entitled (i) to rely upon actionsact on the advice of counsel selected by it. The Shareholders’ Representative shall be fully justified in failing or refusing to take any action under this Agreement unless he shall have received such advice or concurrence of HoldCo and each of the Shareholders as he deems appropriate or he shall have been expressly indemnified to his satisfaction by HoldCo and each of the Shareholders against any and all Liability and expense that the Shareholders’ Representative may incur by reason of taking or continuing to take any such action. The Shareholders’ Representative shall in all cases be fully protected in acting, decisions or refraining from acting, under this Agreement in accordance with a request of HoldCo and determinations each of the Shareholders' Representative , and (ii) such request, and any action taken or failure to assume that all actionsact pursuant thereto, decisions shall be binding upon HoldCo and determinations each of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx.
Appears in 1 contract
Samples: Reorganization Agreement (Westwood Holdings Group Inc)
Shareholders’ Representative. (a) By In addition to the other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the benefits thereof, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement, subject to each Company Shareholder (which, for the terms purpose of this Section 10.15(b)12.11, shall also mean each Shareholder Company Shareholder) hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoints Shareholders’ Representative as such Shareholder's agent, representative, proxy and attorney-in-fact (and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in his capacity the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation ’ Representative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the Transaction Documentsdeath, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and exercising, agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of all the Company Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' ’ Representative shall have has full power and authority, for and on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the Shareholders, terms and provisions of this Agreement and the documents to take all actions, be executed and to exercise such rights, power and authority, delivered by the Company Shareholders in connection with the transactions contemplated hereby and thereby and to exercise such rightsherewith, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to (ii) execute and deliver, or hold in escrow deliver and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other receive deliveries of all agreements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments, and other documents required or waivers relating permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts 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, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or thereby, to conduct waived and (x) take all actions necessary or cease to conduct appropriate in the defense judgment of all Claims against any Shareholder the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to Service by the provisions Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Section 10.15(b)Agreement or any other agreement contemplated hereby, the Shareholders' ’ Representative shall serve as will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the Closing Date until date hereof, but except as expressly provided herein, each of SPAC and the earlier Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of his removal the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the completion Company shall be entitled to rely conclusively (without further evidence of his obligations hereunderany kind whatsoever) on any document executed or purported to be executed on behalf of any Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders' ’ Representative may be replaced or terminated resign at any time time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by those the vote or written consent of the Company Shareholders holding a majority in interest of the Company's shares Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”). At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the ClosingCompany Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. If The Shareholders’ Representative will be promptly reimbursed by the Person who Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 is terminated or replaced by the Shareholders or is unable or unwilling pursuant to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closingthis Agreement; provided, however, that the Shareholders' ’ Representative shall not voluntarily resign without be entitled to indemnification hereunder to the Shareholders first selecting extent it is finally determined in a successor court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders' ’ Representative (reasonably satisfactory to Parent)constituted actual fraud or were taken or not taken in bad faith. Any successor to a The Shareholders' ’ Representative shall for purposes be protected in acting upon any notice, statement or certificate believed by the Shareholders’ Representative 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. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to SPAC or any Affiliate of SPAC by reason of this Agreement be or the performance of the Shareholders' Representative and from and after such time’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the term "resignation or removal of the Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by ’ Representative or the terms termination of this Agreement.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Samples: Business Combination Agreement (DT Cloud Acquisition Corp)
Shareholders’ Representative. Each Shareholder hereby irrevocably appoints Vital Xxxxxx (a“Shareholders’ Representative”) By as the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy mandatory and attorney-in-fact (in his capacity as Shareholders' Representative) after of such Shareholder to take any action required or permitted to be taken by such Shareholder under the Closing Date for the purpose terms of effecting the consummation of the transactions contemplated by this Agreement and the Transaction DocumentsAgreement, and exercisingincluding, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authorityright to waive, for and on behalf modify or amend any of the Shareholdersterms of this Agreement in any respect, to take all actionswhether or not material, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent settle indemnification claims or any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to disputed matters arising under this Agreement, the Transaction Documents Ancillary Agreements or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to of the transactions contemplated hereby or thereby, but excluding the right to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims receive funds on behalf of all the Shareholders and exercise such Shareholder. Each Shareholder agrees to be bound by any and all rights actions taken by Shareholders’ Representative on his or its behalf. Shareholders agree jointly (but not solidarily) to indemnify Shareholders’ Representative from and against and in respect of any and all liabilities, damages, claims, costs and expenses, including, but not limited to, attorneys’ fees, arising out of or due to any action by him as Shareholders’ Representative and any and all actions, proceedings, demands, assessments, or judgments, costs, and expenses incidental thereto, except to the extent that the Shareholders are permitted same result from bad faith or required to do or exercise under Article IXgross negligence on the part of Shareholders’ Representative, and in connection with any Claim against or by each case solely to the Shareholders under this Agreement. The appointment and agency extent of such Shareholder’s Designated Percentage of the aggregate amount so owed to the Shareholder’s Representative. Buyer shall be entitled to rely exclusively and completely upon any communications given by Shareholders' ’ Representative is irrevocableon behalf of any Shareholder, and shall not be deemed liable for any action taken or not taken in reliance upon Shareholders’ Representative nor have any duty to inquire as to whether Shareholders’ Representative has received any Consent of any Shareholder. Buyer shall be entitled to disregard any notices or communications given or made by any Shareholder unless given or made through Shareholders’ Representative. The power of attorney granted by each Shareholder to Shareholders’ Representative hereunder is irrevocable and coupled with an interest. Execution Notwithstanding the appointment of this Agreement by Shareholders’ Representative hereunder, Buyer may require the Shareholders shall constitute agreement written concurrence of any Shareholder to be bound by the actions of the Shareholders' Representative any action taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All Shareholders’ Representative hereby accepts such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, mandate and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders' Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue agrees to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementcapacity.
(c) The Shareholders' Representative shall be allowed further access to and permitted to review the Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn Out or any Claims.
(d) The provisions set forth in this Section 10.15 shall not impose any liability or obligation on Parent or the Surviving Entity other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the Surviving Entity shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Shareholders' Representative and (ii) to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxx
Appears in 1 contract
Shareholders’ Representative. (a) By voting in favor of or consenting to the execution and delivery Merger or by surrendering or delivering to the Paying Agent or the Company (or its designee payroll service provider), as applicable, an executed Letter of Transmittal to the Paying Agent, in exchange for the consideration to be paid in accordance with this Agreement, subject to each Company Holder irrevocably approves the terms depositing of Section 10.15(b)the funds held in the Shareholders’ Representative Fund and the constitution and appointment of, each and hereby irrevocably constitutes and appoints Shareholder irrevocably appointsRepresentative Services LLC as the sole, authorizes exclusive, true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's lawful agent, representative, proxy representative and attorney-in-fact of all Company Holders and each of them (the “Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in his capacity as connection with, this Agreement, the Paying Agent Agreement or any agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of each Company Holder hereunder to:
(i) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Shareholders' Representative) after the Closing Date for the purpose of effecting ’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Paying Agent Agreement, or in connection with any of the matters set forth in clauses (ii) through (xi) of this Section 2.9(a);
(ii) following the Closing, amend any terms of this Agreement related to the Development Milestone Events and the Transaction Documentsassociated payment amounts and timing thereof, Buyer’s obligation to develop and exercisingseek Marketing Approval of MT1621 and the Development Milestone Review Committee’s rights to information related to the Development Milestone Events;
(iii) receive funds, make payments of funds and give receipts for funds;
(iv) do or refrain from doing any further act or deed on behalf of all the Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as the Company Holders could do if personally present;
(v) administer the defense or settlement of any disputes regarding the Closing Cash Payment adjustment pursuant to Section 2.12 and agreeing to or negotiating the Final Closing Statement and Final Closing Cash Payment;
(vi) administer the defense or settlement of any disputes regarding any Contingent Payments pursuant to Section 2.13;
(vii) contest any claims for indemnification pursuant to Section 8.1, to deliver any Claim Dispute Notice pursuant to Section 8.4, and to administer the rights defense or settlement of any such claims for indemnification, and powers of any disputes with respect thereto;
(viii) give any written direction to the Paying Agent;
(ix) give or receive notices to be given or received by the Company Holders under this Agreement, or the Paying Agent Agreement (except to the extent that this Agreement, or the Paying Agent Agreement expressly contemplates that any such notice shall be given or received by each Company Holder individually);
(x) receive service of process in connection with any claims under this Agreement or the Paying Agent Agreement; and
(xi) take any other action that, pursuant to the express terms hereof, is to be (or which may be taken by) the Shareholders’ Representative. All actions, notices, communications and determinations by or on behalf of the Shareholders hereunder Company Holders shall be given or made by the Shareholders’ Representative and thereunderall such actions, notices, communications and determinations by the Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all Company Holders, and no Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the generality rights and obligations of the foregoingCompany, Buyer and Merger Sub under this Agreement, the Shareholders' ’ Representative shall have full power be entitled to: (i) rely upon the Estimated Closing Statement, Allocation Schedule, the Transaction Expense Schedule, and authoritythe CoC Payment Schedule, for (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 Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon the Shareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)applicable Company Holder.
(b) Subject to the provisions of this Section 10.15(b), The Shareholders’ Representative may resign at any time. If the Shareholders' ’ Representative resigns, dies or becomes legally incapacitated, then a majority of the Company Holders, based on their respective Pro Rata Percentages, shall serve promptly designate in writing to Buyer a single Person to fill the Shareholders’ Representative vacancy as such from and after the Closing Date until the earlier of his removal or the completion of his obligations successor Shareholders’ Representative hereunder. The Shareholders' Representative may be replaced or terminated If at any time by those Shareholders holding there shall not be a Shareholders’ Representative or the Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. A majority in interest of the Company's shares immediately prior to the Closing. If Company Holders, based on their respective Pro Rata Percentages, may also replace the Person who is acting serving as the Shareholders' ’ Representative is terminated or replaced by the Shareholders or is unable or unwilling from time to continue time and for any reason upon at least ten (10) days’ prior written notice to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from and after such time, the term "Shareholders' Representative" as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this AgreementBuyer.
(c) The Shareholders' ’ Representative shall act for the Company Holders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be allowed in the best interest of the Company Holders. The Shareholders’ Representative is authorized to act on behalf of the Company Holders notwithstanding any dispute or disagreement among the Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further access inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be authorized thereunto. The Shareholders’ Representative undertakes to perform such duties and permitted only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Shareholders’ Representative. The Shareholders’ Representative will incur no liability of any kind with respect to review any action or omission by the Surviving Entity's books Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and records during normal business hours any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and make copies reasonably required hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 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 Holders 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 Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the working papers of Parent and funds in the Surviving Entity relating to the Earn Out or any Claims Shareholders’ Representative Fund and (ii) the Escrow Fund, any supporting schedulesDevelopment Milestone Payment or any Royalty Payment, supporting analyses and other supporting documentation relating in each case only at or after such time as remaining amounts would otherwise be distributable to the Earn Out Company Holders; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Company Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. Except for this Agreement and the Shareholders’ Representative engagement letter, the Shareholders’ Representative has not entered into any Contract, arrangement or understanding with the Company or any ClaimsCompany Holder, and the Company Holders do not have any requirements, prerequisites or veto rights in connection with the Shareholders’ Representative’s fulfillment of its obligations or exercise of its rights under this Agreement other than as set forth in such engagement letter.
(d) The provisions set forth Shareholders’ Representative shall treat confidentially any nonpublic information disclosed to it pursuant to this Agreement and shall not use such nonpublic information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any nonpublic information disclosed to it pursuant to this Agreement to anyone except as required by Law; provided that (i) the Shareholders’ Representative may disclose such nonpublic information to legal counsel and other advisors under an obligation of confidentiality and non-use in its capacity as such (for the purpose of advising the Company Holders on any information disclosed to such Shareholders’ Representative pursuant to this Agreement), (ii) the Shareholders’ Representative (or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose such nonpublic information disclosed to the Shareholders’ Representative pursuant to this Agreement in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Shareholders’ Representative may disclose to employees, advisors, agents or consultants of the Shareholders’ Representative and to any Company Holder (in each case who have a need to know such information and who are subject to confidentiality obligations with respect thereto) any such nonpublic information disclosed to the Shareholders’ Representative.
(e) Buyer shall be entitled to rely on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of the Company Holders for all purposes under this Agreement and shall have no Liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative. Each Company Holder, by voting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent or the Company (or its designee payroll service provider), as applicable, along with an executed Letter of Transmittal hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative in the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 10.15 2.9, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Company Holder.
(f) At the Closing, Buyer shall pay the Shareholders’ Representative Fund Amount to the Shareholders’ Representative, which shall be maintained by the Shareholders’ Representative in a segregated account (the aggregate amount of cash so held by the Shareholders’ Representative from time to time, the “Shareholders’ Representative Fund”). 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 the event of bankruptcy. The Company Holders shall not impose receive interest or other earnings on the Shareholders’ Representative Fund and the Company Holders irrevocably transfer and assign to the Shareholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Shareholders’ Representative Fund. The Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Shareholders’ Representative Fund other than as a result of its bad faith, gross negligence or obligation willful misconduct. For Tax purposes, the Shareholders’ Representative Fund shall be treated in accordance with Section 5.1(f). The Shareholders’ Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Shareholders’ Representative Fund; provided that if the Shareholders’ Representative Fund is insufficient to pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from the Company Holders on Parent a several basis (and not a joint and several basis) according to their respective Pro Rata Percentages.
(g) Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Fund is to be distributed to the Company Holders, (i) the Shareholders’ Representative shall calculate the amount to be distributed to the Company Holders after (A) payment of all of the Shareholders’ Representative’s out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative and (B) deduction of the Employer Tax Amount payable on or triggered by such payment of the portion of such amount to be paid to the Company Award Holders by the Surviving Entity Corporation with the amount in clause (B) to be calculated iteratively, (ii) deposit with the Paying Agent such portion of the resulting amount payable to the Company Holders other than those explicitly set forth in this Agreement. In particularthe Company Award Holders, notwithstanding in any case any notice received by Parent or and (iii) pay to the Surviving Entity Corporation such portion of the resulting amount payable to the contrary, Parent Company Award Holders plus the Employer Tax Amount calculated in clause (i)(B) above. The Paying Agent and the Surviving Entity Corporation, as applicable, shall make payments to the Company Holders pursuant to the Allocation Schedule, less any applicable Tax withholding required by applicable Law; provided, however, than such amounts payable to the Company Award Holders shall in no event be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations paid more than five years following the Closing Date. Any portion of the Shareholders' ’ Representative and Fund that remains undeliverable or unclaimed after twelve (ii12) to assume that all actions, decisions and determinations months of the Shareholders' Representative are fully authorized initial delivery attempt (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity by Law) shall become, to the extent permitted by Law, including any abandoned property, escheat or similar Law, the property of Buyer, free and binding upon the Shareholders' Representative and the Shareholdersclear of any claims or interest of any Person previously entitled thereto. The Parties hereto have caused Shareholders’ Representative Fund shall not be available to Buyer to satisfy any claims in connection with this Agreement and Plan of Merger to be executed as of or the date first written above. NATIONAL TECHNICAL SYSTEMS, INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ Xxxxxx X. Xxxxxxx SHAREHOLDERS ____________________________________ Xxxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxxxx ____________________________________ Xxxxxx X. Xxxxx, III The Xxxxxx X. Xxxxxxx Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ Xxxxxx X. Xxxxxxx, as Settlor and Trustee ____________________________________ Xxxxxx X. Xxxxxx ____________________________________ Xxxxx X. Xxxxtransactions contemplated hereby.
Appears in 1 contract
