Shareholders' Representatives. Each Shareholder, without any further action on the part of any Person, hereby agrees to the appointment of the Shareholders' Representatives, and the Shareholders’ Representatives hereby agree to act on behalf of the Shareholders, and accept their appointment as Shareholders’ Representatives. In connection with such appointment. (a) The Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreement. Such power of attorney is coupled with an interest and is irrevocable by the Shareholders. (b) All decisions and actions by the Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01. (c) The power and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing. (d) If all of the Shareholders’ Representatives resign from such position, such Shareholders’ Representatives shall designate a replacement Shareholders’ Representative prior to such resignation or, if the Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ Representatives shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholder. (e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.
Appears in 1 contract
Shareholders' Representatives. Each Shareholder, without any further action on the part of any Person, hereby agrees to the appointment of the Shareholders' Representatives, and the Shareholders’ Representatives hereby agree to act on behalf of the Shareholders, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (By virtue of their approval of this Agreement, the Majority Shareholders and Minority Shareholders shall have constituted and appointed Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxx, either acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reservealone or together, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representativeshareholders’ representatives (collectively, attorney-in-fact and agent “Shareholders’ Representatives”) for and on behalf of the Majority Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreement. Such power of attorney is coupled with an interest and is irrevocable by the Shareholders.
(b) All decisions and actions by the Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Minority Shareholders, to give and no Shareholder shall have the right receive notices and communications, to object agree to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01.
(c) The power and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settleenter into settlements and compromises of, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions on behalf of the Majority Shareholders and Minority Shareholders as is explicitly contemplated by this Agreement or the Escrow Agreement and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
(d) If all . No bond shall be required of the Shareholders’ Representatives resign from such positionRepresentatives, such Shareholders’ Representatives shall designate a replacement Shareholders’ Representative prior to such resignation or, if and the Shareholders’ Representatives shall fail receive no compensation for their services. Notices or communications to do so, a replacement or from the Shareholders’ Representatives shall be appointed by the Persons constitute notice to or from each Company Securityholder.
(other than the resigning Shareholders’ Representativesb) who held a majority of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is shall not a Shareholder be liable to any Company Securityholder for any act done or an employee omitted hereunder as Shareholders’ Representatives while acting in good faith and in the exercise of a Shareholder.
(e) Buyer reasonable judgment and any act done or omitted pursuant to the advice of counsel or with the consent of two-thirds in interest of the Majority Shareholders and Minority Shareholders, which shall be entitled to conclusively rely on all statements, representations conclusive evidence of such good faith. The Majority Shareholders and decisions of Minority Shareholders shall severally indemnify the Shareholders’ Representative and hold each of them harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of such Shareholders’ Representatives as those and arising out of or in connection with the Shareholders, without any independent investigation acceptance or verification.administration of his duties hereunder. Table of Contents
Appears in 1 contract
Shareholders' Representatives. Each Shareholder, without any further action on the part of any Person, hereby agrees to the appointment of the Shareholders' Representatives, and the Shareholders’ Representatives hereby agree to act on behalf of the Shareholders, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (acting by Each Shareholder irrevocably constitutes and appoints each of Sxxxx Xxxxxxxx, Susquehanna Private Equity Investment, LLLP and Rxxxxx Xxxxxx as a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action Shareholders Representative or the second anniversary of the Closing Date Deciding Vote Holder (as applicable) and as such Shareholder’s true and lawful attorney in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of authorizes the Shareholders Representatives and their respective heirs, beneficiaries, legatees, legal representatives, successors the Deciding Vote Holder acting for such Shareholder and assigns (in such capacityShareholder’s name, place and stead, in any and all capacities to do and perform every act and thing required or permitted by this Agreement (including to give and receive all notices required or permitted to be given under this Agreement or the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, other Transaction Documents). Each Shareholder acknowledges and agrees that upon any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreement. Such power of attorney is coupled with an interest and is irrevocable delivery by the Shareholders.
(b) All decisions and actions Shareholders Representatives or the Deciding Vote Holder of any waiver, amendment, agreement, certificate or other document executed by the Shareholders’ Shareholders Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) Deciding Vote Holder, such Shareholder shall be binding upon all of the Shareholdersbound by such documents or action as fully as if such Shareholder had executed and delivered such documents, and no Shareholder shall have the right to object toobject, dissent fromdissent, protest, negate protest or otherwise contest the same. Any actions , or any cause of action against the Shareholders Representatives or the Deciding Vote Holder for any action taken or not taken, decision made or instruction given by the Shareholders Representatives or the Deciding Vote Holder under this Agreement or any other Transaction Document, except for fraud, gross negligence, willful misconduct or bad faith by a Shareholders Representative or the Deciding Vote Holder. The Shareholders’ , in accordance with their respective Allocated Shares (as set forth in Funds Flow), shall pay all fees, costs and expenses incurred by the Shareholders Representatives and/or the Deciding Vote Holder in performing such Person’s duties hereunder.
(b) Either Shareholders Representative, or the Deciding Vote Holder, may resign at any time upon not less than ten (10) days prior written notice to the Purchaser. Upon the resignation, death, disability or incapacity of a Shareholders Representative taken appointed pursuant to this Section 1.5, then (i) the authority granted other remaining Shareholders Representative shall be the sole Shareholders Representative to act on behalf of the Shareholders under this Section 9.01 Agreement, (ii) the Deciding Vote Holder shall have no further authority as Deciding Vote Holder hereunder and (iii) all references to the Shareholders Representative shall be deemed to be a reference to the action of all sole remaining Shareholders Representative. Upon the resignation, death, disability or incapacity of the Shareholders’ RepresentativesDeciding Vote Holder prior to the resignation, death, disability or incapacity of a Shareholders Representative, the Shareholder Majority (as hereinafter defined) shall appoint a replacement Deciding Vote Holder within thirty (30) days of such resignation, death, disability or incapacity and such Person shall thereafter be the Deciding Vote Holder for all purposes until such Person’s resignation, death, disability or incapacity. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action After the resignation of one of the Shareholders’ Representatives taken pursuant Shareholders Representatives, upon the resignation, death, disability or incapacity of the Shareholders Representative or any replacement Shareholders Representative thereafter, the holders of the majority of the outstanding Shares (assuming that each share of Series A Preferred Stock was converted into Common Stock in accordance with the Company’s Amended and Restated Certificate of Incorporation) immediately prior to the authority granted in this Section 9.01Closing (the “Shareholder Majority”) shall appoint a replacement Shareholders Representative hereunder within thirty (30) days of such resignation, death, disability or incapacity and such Person shall thereafter be the Shareholders Representative for all purposes until such Person’s resignation, death, disability or incapacity. If the Shareholder Majority and Purchaser shall mutually agree (i) that the removal of either Shareholders Representative is necessary at a given time, if there is only one Shareholders Representative, the Shareholder Majority shall appoint a replacement Shareholders Representative or (ii) that the removal of Deciding Vote Holder is necessary at a given time, the Shareholder Majority shall appoint a replacement Deciding Vote Holder.
(c) The power Each Shareholder agrees that the Purchaser Parties and authority granted the Company shall be entitled to rely without qualification, investigation or verification on any action taken, or the Shareholders’ failure to take any action, by the Shareholders Representatives or the Deciding Vote Holder, on behalf of the Shareholders pursuant to this Section 9.01 (a) includes the power 1.5, and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices that each such action or instruments contemplated by inaction shall be binding on each Shareholder as fully as if such Shareholder had taken or deemed by the Shareholders’ Representatives failed to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any take such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoingaction.
(d) If The Shareholders severally based on each Shareholder’s Allocated Share (as set forth in the Funds Flow), and not jointly, shall indemnify, hold harmless and reimburse each Shareholders Representative and the Deciding Vote Holder against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or incurred by a Shareholders Representative or the Deciding Vote Holder in connection with any action, suit, proceeding, or claim to which a Shareholders Representative or the Deciding Vote Holder is made a party by reason of the Shareholders’ Representatives resign from such positionfact that it is or was acting as a Shareholders Representative or the Deciding Vote Holder pursuant to the terms of this Agreement; provided, such Shareholders’ Representatives however, that the foregoing indemnification shall designate a replacement Shareholders’ Representative prior to such resignation ornot apply in the event of any action, if suit, proceeding, or claim which finally adjudicates the Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ Representatives shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority liability of the Shares immediately prior to applicable Shareholders Representative or the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required Deciding Vote Holder hereunder for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder its fraud, gross negligence, bad faith or an employee of a Shareholderwillful misconduct.
(e) Buyer The Purchaser Parties and the Shareholders Representatives shall provide copies of all correspondence, notices or other written communication to the Deciding Vote Holder at the same time as provided to the Purchaser Parties or the Shareholders Representatives. Any actions to be taken hereunder by the Shareholders Representatives shall require the approval of each Shareholders Representative and the Purchaser Parties shall not accept actions or comments of the Shareholders Representatives unless agreed to by both Shareholders Representatives. Unless as otherwise expressly set forth herein, in the event that the Shareholders Representatives cannot agree as to any actions to be taken hereunder, such decision shall be entitled submitted to conclusively rely the Deciding Vote Holder whose decision shall be final and binding on all statements, representations and decisions the Shareholders Representatives. In the event that (i) the consent of the Shareholders’ Shareholders Representatives as those or any act of the ShareholdersShareholders Representatives are necessary for a Purchaser Party to take any action hereunder, without if such consent or affirmative action is necessary to take such action and the Purchaser Parties do not receive a response in writing agreed to by both Shareholders Representative within five (5) business days after such request, then the Purchaser Parties shall notify the Deciding Vote Holder who will then have the authority to decide the matter on behalf of the Shareholders Representatives within five (5) business days after such notice (and it is acknowledged and agreed that notwithstanding anything herein to the contrary the Deciding Vote Holder will have the authority to sign any independent investigation document, agreement or verificationcertificate required to be signed by the Shareholders Representatives, including any documents that are a condition to Closing in such instance and for purposes of this Agreement it shall be as if such document, agreement or certificate was executed and delivered by the Shareholders Representatives) or (ii) if the Shareholders Representatives have the right to provide comments to any documents, agreements or certificates, or such documents, agreements or certificates must be reasonably acceptable to the Shareholders Representatives, and the Purchaser Parties do not receive a unified set of comments from the Shareholders Representative within five (5) business days, then the document delivered by the Purchaser Parties shall be deemed to be reasonably acceptable to the Shareholders Representatives.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Renovare Environmental, Inc.)
Shareholders' Representatives. Each Shareholder(a) Johnny Humphreys, without Fred A. Brown and GFI shall be constituted and appoixxxx xx xxxxxx (thx "Xxxxxxxxxxrs' Representatives") for and on behalf of ----------------------------- the Company Shareholders, their respective Affiliates and their respective representatives to give and receive notices and communications, to organize or assume the defense of third-party claims, to agree to, negotiate or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims, and to take all actions necessary or appropriate in the judgment of the Shareholders' Representatives for the accomplishment of the foregoing. Unless and until GFI designates any further action on the part of any Personother individual to serve as its designee, hereby agrees all communications with GFI in its Shareholders' Representative capacity shall be addressed to the appointment attention of Andrew Osler. Such agency may be changed by the holders of at least sexxxxx-xxxx xercent (75%) of the Company Common Stock at the Effective Time of the Merger upon not less than ten (10) days' prior written notice to Itron. No bond shall be required of the Shareholders' Representatives, and the Shareholders’ ' Representatives hereby agree shall receive no compensation for services rendered; provided, however, that they shall be entitled to act on behalf reimbursement of their expenses in serving as Shareholders' Representatives. Notices or communications to or from the Shareholders' Representatives shall constitute notice to or from the Company Shareholders. Notwithstanding the foregoing, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (acting by a vote nothing in this Section ------- 10.7 shall be construed to alter the authority of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) GFI with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreementits rights ---- under Section 3.2. Such power of attorney is coupled with an interest and is irrevocable by the Shareholders.-----------
(b) All decisions The Shareholders' Representatives shall not be liable to any of the Company Shareholders for any act done or omitted hereunder as Shareholders' Representatives except to the extent they individually or collectively acted with gross negligence or willful misconduct, and actions by any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that the Shareholders’ ' Representatives (acting by a vote of majority in interest did not act with gross negligence or willful misconduct. The Company Shareholders shall severally and proportionately indemnify the Shareholders' Representatives and hold them harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representatives’ Shares held immediately prior to ' Representatives and arising out of or in connection with the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment acceptance or unpaid Company Transaction Expenses, or by vote of majority in interest administration of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01duties hereunder.
(c) The power Shareholders' Representatives shall have reasonable access to information about the former Company business and authority granted to operations and the reasonable assistance of Itron's officers and employees for purposes of performing their duties and exercising their rights hereunder; provided, that the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
(d) If all of the Shareholders’ Representatives resign from such position, such Shareholders’ ' -------- Representatives shall designate treat confidentially and not disclose any nonpublic information from or about Itron to anyone (except on a replacement need to know basis to individuals who agree to treat such information confidentially). The Shareholders’ Representative prior to such resignation or, if the Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ ' Representatives shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority third party beneficiaries of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representativesterms of this Section 10.7(c). The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholder.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.---------------
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Itron Inc /Wa/)
Shareholders' Representatives. Each ShareholderThe Shareholders hereby designate the Shareholders' Representatives to execute any and all instruments or other documents on behalf of the Shareholders, without and to do any further action and all other acts or things on behalf of the part Shareholders, which the Shareholders' Representatives may deem necessary or advisable, or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the transactions contemplated hereby and the performance of all obligations hereunder at or following the Closing. Without limiting the generality of the foregoing, the Shareholders' Representatives shall have the full and exclusive authority to: (i) agree unanimously with the Purchaser with respect to any Personmatter or thing calling for the agreement of the Shareholders under the terms of this Agreement, hereby agrees (ii) give and receive notices on behalf of all the Shareholders, (iii) act on behalf of the Shareholders in connection with any matter as to which the appointment Shareholders are or may be obligated to do under this Agreement, all in the absolute discretion of the Shareholders' Representatives, and (iv) in general, do all things and perform all acts, including without limitation, executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Shareholders’ ' Representatives hereby agree to act on behalf of the Shareholdersbe necessary or advisable in connection with, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred and (v) take all actions necessary or desirable in connection with the defense and/or settlement of any indemnification claims pursuant to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE Article IX and performance of obligations under Article II, including withholding funds for the satisfaction of post-Closing liabilities. The Shareholders shall cooperate with the Shareholders' Representatives and the Escrow Agreementany accountants, attorneys or other agents whom they may retain to assist in carrying out its duties hereunder. Such power of attorney is coupled with an interest and is irrevocable All decisions by the Shareholders.
(b) All decisions and actions by the Shareholders’ ' Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object toobject, dissent fromdissent, protest, negate protest or otherwise contest the same. Any actions by a The Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each ' Representatives may communicate with any Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01.
(c) The power and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreementsPerson concerning his responsibilities hereunder, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
(d) If all of the Shareholders’ Representatives resign from such position, such Shareholders’ Representatives shall designate a replacement Shareholders’ Representative prior to such resignation or, if the Shareholders’ Representatives shall fail but it is not required to do so, . The Shareholders' Representatives hereby acknowledges and agrees it has a replacement duty to serve in good faith the interests of the Shareholders and to perform its designated role under this Agreement. The Shareholders hereby acknowledge and agree that the Shareholders’ ' Representatives shall have no financial liability whatsoever to any Person relating to their service hereunder (including any action taken or omitted to be appointed taken), except that it shall be liable for harm which it directly causes by an act of willful misconduct. The Shareholders further agree to indemnify and hold harmless the Persons Shareholders' Representatives against any loss, expense (including reasonable attorney's fees and disbursements) or other liability arising out of their service as the Shareholders' Representatives under this Agreement, other than the resigning Shareholders’ Representatives) who held a majority for harm directly caused by an act of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholderwillful misconduct.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.
Appears in 1 contract
Samples: Stock Purchase Agreement (Day International Group Inc)
Shareholders' Representatives. Each Shareholder, without any further action on (a) In order to administer efficiently the part of any Person, hereby agrees to the appointment rights and obligations of the Shareholders' RepresentativesShareholders under this Agreement, the Shareholders hereby designate and appoint the Principal Shareholder and Xxxxxxx Xxxxxxxxxxx, acting together, as the Shareholders’ Representatives hereby agree to act on behalf of the Shareholders, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) to serve as the Shareholders’ agent and attorney-in-fact for the limited purposes set forth in this Agreement.
(b) Each of the Shareholders hereby appoints the Shareholders’ Representatives as such Shareholder’s agent, proxy and attorney-in-fact, with respect to the matters full power of substitution, for all purposes set forth in this Agreement, including those matters referred the full power and authority on such Shareholder’s behalf (i) to in ARTICLE VII, consummate the transactions contemplated by this Agreement; (ii) to disburse any adjustment funds received hereunder to the Headline Value Shareholders; (iii) to execute and deliver on behalf of each Shareholder any amendment of or Closing Payment, as set forth in ARTICLE IIwaiver under this Agreement, and to agree to resolution of all Claims hereunder; (iv) to retain legal counsel and other professional services, at the Escrow Agreement. Such power expense of attorney is coupled with an interest and is irrevocable by the Shareholders.
(b) All decisions and actions , in connection with the performance by the Shareholders’ Representatives (acting by a vote of majority in interest this Agreement including all actions taken on behalf of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined Shareholders as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken Indemnifying Party pursuant to the authority granted under this Section 9.01 shall be deemed 10.5; and (v) to be the action of all of the Shareholders’ Representatives. Each Shareholder waives do each and every act and exercise any and all defenses rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the Shareholders agrees that may be available to object tosuch agency and proxy are coupled with an interest, dissent from, protest, negate or otherwise contest, any action are therefore irrevocable without the consent of the Shareholders’ Representatives taken pursuant to and shall survive the authority granted in this Section 9.01death, bankruptcy or other incapacity of any Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any Claim (including any action taken to object to, defend, compromise or agree to the payment of such Claim), shall be effective if approved in writing by the Shareholders’ Representatives, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver. Stock Purchase Agreement Xxxxxx Valley Waste Holding, Inc.
(d) The power Principal Shareholder and authority granted to Xxxxxxx Xxxxxxxxxxx shall serve jointly as the Shareholders’ Representatives pursuant until such individual either resigns or is otherwise unable or unwilling to Section 9.01 (a) includes serve. In the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
(d) If all of the Shareholders’ Representatives resign from such position, such Shareholders’ Representatives shall designate event that a replacement Shareholders’ Representative prior resigns from such position or is otherwise unable or unwilling to such resignation orserve, if the Shareholders’ Representatives remaining Shareholders shall fail to do soselect, a replacement Shareholders’ Representatives shall be appointed by the Persons (other than vote of the resigning Shareholders’ Representatives) who held holders of a majority of the Shares Holding Company’s Stock immediately prior to the Closing Date shall have the right to appoint Closing, a successor representative to fill such vacancy, shall provide prompt written notice to WCI of such change and such substituted representative, together with any existing representative, shall then be deemed to be a Shareholders’ Representatives. The prior written consent Representative for all purposes of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholderthis Agreement.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.
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Shareholders' Representatives. Each Shareholder, without any further action on the part of any Person, hereby agrees The Company Shareholders have voted for and consented to the appointment execution and adoption of this Agreement and the approval of the Shareholders' Representativestransactions contemplated hereby, including but not limited to the Exchange, and have irrevocably appointed attorney Mads X. Xxxxxxxxxxx and Xxxxx Xxxx as the Shareholders’ Representatives hereby agree Representatives, to act on behalf of the Company Shareholders, with the same effect as if each such Company Shareholder had individually appointed such Shareholders’ Representative, with full power and accept their appointment authority to act in the name of and for and on behalf of each Company Shareholder with respect to all matters arising in connection with, or related to, this Agreement and the transactions contemplated hereby and thereby. A copy of the Power of Attorney attached by each of the Company Shareholders is attached hereto as Exhibit B. 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 Company Shareholder upon the vote or consent by such Company Shareholder for the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Exchange. The Shareholders’ Representatives have been appointed (i) the agent and true and lawful attorney-in-fact of each Company Shareholder, with full power of substitution, and with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Company 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 Company Shareholder, and the Company 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’ Representatives. In connection with such appointment.
(a) The Without limiting the generality of the foregoing, the power of the Shareholders’ Representatives shall include the power to represent each Company Shareholder with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (acting 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’ Representatives deems necessary or advisable with respect to this Agreement. CryptoSign and the Company shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Shareholders’ Representatives on behalf of the Company Shareholders. Each Company Shareholder has acknowledged and agreed that (i) all deliveries by Company, including, without limitation, any payment, to the Shareholder’ Representative shall be deemed deliveries to the Company Shareholders, (ii) CryptoSign or the Company shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Shareholders’ Representatives and any Company Shareholder and (iii) any disclosure made to the Shareholders’ Representatives by or on behalf of CryptoSign or Company shall be deemed to be a vote disclosure made to each Company Shareholder. In the event that either Mads X. Xxxxxxxxxxx and Ulrik refuses to, or is no longer capable of, serving as a Shareholders’ Representative hereunder, holders of a majority of the issued and outstanding capital stock of Company shall promptly appoint a successor Shareholders’ Representative who shall be reasonably acceptable to Company 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 Company Shareholders shall indemnify, defend and hold harmless the Shareholders’ Representatives 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’ Representatives may suffer or incur by reason of any action, claim or proceeding brought against the Stockholders’ Representative arising out of or relating in interest any way to this Agreement, or any transaction to which this Agreement relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the willful misconduct or gross negligence of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreement. Such power of attorney is coupled with an interest and is irrevocable by the Shareholders.
(b) All decisions and actions by the Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01.
(c) The power and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; (iii) review the Closing Statement, provide comments to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
(d) If all of the Shareholders’ Representatives resign from such position, such Shareholders’ Representatives shall designate a replacement Shareholders’ Representative prior to such resignation or, if the Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ Representatives shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholder.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.
Appears in 1 contract
Shareholders' Representatives. Each Shareholder, without any further action on the part of any Person, hereby agrees to the appointment The shareholders of the Shareholders' RepresentativesCompany, by approving this Agreement and the transactions contemplated hereby, and the Shareholders’ Representatives Terminating Warrantholders, by executing the Warrant Cancellation Agreement, hereby agree to act on behalf of the Shareholders, irrevocably appoint Cxxxxxxxxxx X. Xxxxx and accept their appointment Pxxx Xxxxxxxx as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior , including to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined act as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow their agents and Founder Retention Escrow) are hereby appointed to serve as the representative, attorneyattorneys-in-fact for purposes of Section 2.9 and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, Section 10 and the Escrow Agreement. Such power of attorney is coupled with an interest , and is irrevocable by consent to the Shareholders.
(b) All decisions and actions taking by the Shareholders’ Representatives (acting by a vote of majority in interest of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may actions and the making of any decisions required or permitted to be available to object to, dissent from, protest, negate or otherwise contest, any action taken by either of the Shareholders’ Representatives taken pursuant to the authority granted in them under this Section 9.01.
(c) The power Agreement and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by (including the Shareholders’ Representatives exercise of the power to be advisable in connection with authorize delivery to Parent of the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account Funds in satisfaction of any such indemnification claim claims by Parent or otherwise, agree to, negotiate, enter into settlements and authorizing the delivery to Buyer compromises of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such claims or otherwise, resolve any such indemnification claims; (iii) review claims made pursuant to Section 2.9 and Section 10 and the Closing StatementEscrow Agreement, provide comments and to the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and (iv) take all other actions necessary in the judgment of the Shareholders’ Representatives deem necessary or appropriate for the accomplishment of the foregoing.
). By their execution of the Escrow Agreement, each of Cxxxxxxxxxx X. Xxxxx and Pxxx Xxxxxxxx hereby accepts his appointment as a Shareholders’ Representative for purposes of Section 2.9 and Section 10 and the Escrow Agreement. Parent shall be entitled to deal exclusively with the Shareholders’ Representatives on all matters relating to Section 2.9 and Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (dwithout further evidence of any kind whatsoever) If all on any document executed or purported to be executed on behalf of any Company Shareholder or Terminating Warrantholder by either Shareholders’ Representative (with the consent of the other Shareholders’ Representative), and on any other action taken or purported to be taken on behalf of any Company Shareholder or Terminating Warrantholder by either Shareholders’ Representative (with the consent of the other Shareholders’ Representative), as fully binding upon such Company Shareholder or Terminating Warrantholder. The rights and obligations of the Shareholders’ Representatives shall be as set forth in the Escrow Agreement. If either Shareholders’ Representative shall die, become disabled, resign from or otherwise be unable to fulfill his responsibilities as agent of the Company Shareholders and the Terminating Warrantholders, then the Company Shareholders and the Terminating Warrantholders who hold a majority of the voting Company Capital Stock immediately prior to the Merger (assuming, for this purpose, that all Terminated Warrant Shares attributable to the Terminating Warrantholders were outstanding at such positiontime) (the “Requisite Former Company Shareholders”) are authorized and shall, within 10 days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become a “Shareholders’ Representative” for purposes of Section 2.9, Section 10, this Section 13.1 and the Escrow Agreement. If for any reason there are no Shareholders’ Representatives at any time, all references herein to the Shareholders’ Representatives shall designate be deemed to refer to the Requisite Former Company Shareholders. Each Shareholders’ Representative shall have no liability to any Company Shareholder or Terminating Warrantholder with respect to the execution of his duties and responsibilities, except with respect to gross negligence or willful misconduct. Furthermore, the Company Shareholders and the Terminating Warrantholders shall indemnify and hold harmless the Shareholders’ Representatives for any Damages (including Damages arising out of the negligence of the Shareholders’ Representative) arising out of the acceptance or administration of their duties hereunder and reasonable fees and expenses incurred in the fulfillment of their duties and responsibilities. The Company Shareholders and the Terminating Warrantholders shall, jointly and severally, indemnify the Shareholders’ Representatives and hold them harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representatives and arising out of or in connection with the acceptance or administration of their duties hereunder. Any indemnification obligations owed to the Shareholders’ Representatives by the Company Shareholders and the Terminating Warrantholders under this Section 13 shall be paid (a) at the end of the Escrow Claim Period or thereafter out of Escrow Funds that would otherwise be released to the Company Shareholders and Terminating Warrantholders at such time pursuant to Section 2.9 and the Escrow Agreement or (b) out of Milestone Merger Consideration otherwise payable to the Company Shareholders and Terminating Warrantholders, after giving effect to Section 10.7, at the times such Milestone Merger Consideration is payable under this Agreement, in each case with such amounts to be determined on a pro rata basis for each Company Shareholder and Terminating Warrantholder based on the Escrow Funds contributed under the Escrow Agreement by or on behalf of each Company Shareholder and Terminating Warrantholder.
(a) A Company Shareholder, by his, her or its approval of this Agreement and approval of the Merger, and a Terminating Warrantholder, by his, her or its execution of the Warrant Cancellation Agreement agrees, in addition to the foregoing, that:
(i) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by, or believed in good faith by Parent to be given or made by, the Shareholders’ Representatives as to the settlement of any claims for indemnification by Parent or the Surviving Corporation pursuant to Section 10 hereof, or any other actions required or permitted to be taken by the Shareholders’ Representatives hereunder, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(ii) all actions, decisions and instructions of the Shareholders’ Representatives shall be conclusive and binding upon all of the shareholders of the Company and the Terminating Warrantholders and no Company Shareholder or Terminating Warrantholder shall have any cause of action against either Shareholders’ Representative for any action taken, decision made or instruction given by such Shareholders’ Representative under this Agreement, except for actual fraud or willful and intentional breach of this Agreement by such Shareholders’ Representative;
(iii) the provisions of this Section 13.1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder or Terminating Warrantholder may have in connection with the transactions contemplated by this Agreement; and
(iv) remedies available at law for any breach of the provisions of this Section 13.1 are inadequate; therefore, Parent and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Parent or the Surviving Corporation or any of them brings an action to enforce the provisions of this Section 13.1. The provisions of this Section 13.1 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Shareholder and Terminating Warrantholder. Except as otherwise set forth herein, all actions of the Shareholders’ Representatives authorized hereunder shall require the consent or approval of both Shareholders’ Representatives; provided, however, if there is only one Shareholders’ Representative (and a replacement Shareholders’ Representative prior has not been appointed to such resignation orfill the vacant position), if then the remaining Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ Representatives shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority of the Shares immediately prior to the Closing Date Representative shall have the right sole authority to appoint a successor Shareholders’ Representatives. The prior written consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholdertake all actions authorized hereunder.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions of the Shareholders’ Representatives as those of the Shareholders, without any independent investigation or verification.
Appears in 1 contract
Samples: Merger Agreement (Volcano CORP)
Shareholders' Representatives. Each Shareholder(i) Xxxx Xxxxx and Per Tveita shall be constituted and appointed as agents (the "Shareholders' Representatives") for and on behalf of the Company Shareholders, without any further action on their respective Affiliates and their respective representatives to give and receive notices and communications, to organize or assume the part defense of any Personthird-party claims, hereby agrees to agree to, negotiate or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims, and to take all actions necessary or appropriate in the appointment judgment of the Shareholders' Representatives for the accomplishment of the foregoing. Such agency may be changed by the holders of at least seventy-five percent (75%) of the Company Common Shares at the Effective Time of the Amalgamation upon not less than ten (10) days' prior written notice to Itron. No bond shall be required of the Shareholders' Representatives, and the Shareholders’ ' Representatives hereby agree shall receive no compensation for services rendered; provided, however, that they shall be entitled to act on behalf reimbursement of their expenses in serving as Shareholders' Representatives. Notices or communications to or from the Shareholders, and accept their appointment as Shareholders’ Representatives. In connection with such appointment.
(a) The Shareholders’ ' Representatives (acting by a vote of majority in interest of shall constitute notice to or from the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of the date of action or the second anniversary of the Closing Date in the case of the Indemnity Escrow and Founder Retention Escrow) are hereby appointed to serve as the representative, attorney-in-fact and agent for and on behalf of the Shareholders and their respective heirs, beneficiaries, legatees, legal representatives, successors and assigns (in such capacity, the “Shareholders’ Representatives”) with respect to the matters set forth in this Agreement, including those matters referred to in ARTICLE VII, any adjustment to the Headline Value or Closing Payment, as set forth in ARTICLE II, and the Escrow Agreement. Such power of attorney is coupled with an interest and is irrevocable by the Shareholders.
(bii) All decisions The Shareholders' Representatives shall not be liable to any of the Company Shareholders for any act done or omitted hereunder as Shareholders' Representatives except to the extent they individually or collectively acted with gross negligence or willful misconduct, and actions by any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that the Shareholders’ ' Representatives (acting by a vote of majority in interest did not act with gross negligence or willful misconduct. The Company Shareholders shall severally and proportionately indemnify the Shareholders' Representatives and hold them harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Shareholders’ Representatives’ Shares held immediately prior to the Closing in case ' Representatives and arising out of matters relating to the Holdback Representatives Reserve, Net Working Capital Adjustment or unpaid Company Transaction Expenses, or by vote of majority in interest of the Retained Founders Contribution Percentage determined as of the earlier of action or the second anniversary of the Closing Date) shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object to, dissent from, protest, negate or otherwise contest the same. Any actions by a Shareholders’ Representative taken pursuant to the authority granted under this Section 9.01 shall be deemed to be the action of all of the Shareholders’ Representatives. Each Shareholder waives any and all defenses that may be available to object to, dissent from, protest, negate or otherwise contest, any action of the Shareholders’ Representatives taken pursuant to the authority granted in this Section 9.01.
(c) The power and authority granted to the Shareholders’ Representatives pursuant to Section 9.01 (a) includes the power and authority to: (i) execute and deliver the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed by the Shareholders’ Representatives to be advisable in connection with the Escrow Agreement; (ii) negotiate, settle, compromise and otherwise handle any claims for indemnification made by an Indemnified Party pursuant to ARTICLE VII (including authorizing the delivery to Buyer of all acceptance or any portion administration of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim and authorizing the delivery to Buyer of all or any portion of the amounts then held in the Escrow Account in satisfaction of any such indemnification claim pursuant to ARTICLE VII) pursue or respond to litigation and comply with orders of courts with respect to any such indemnification claims; duties hereunder.
(iii) review The Shareholders' Representatives shall have reasonable access to information about the Closing Statementformer Company business and operations and the reasonable assistance of Itron's officers and employees for purposes of performing their duties and exercising their rights hereunder; provided, provide comments that the Shareholders' Representatives shall treat confidentially and not disclose any nonpublic information from or about Itron to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholders' Representatives shall be third party beneficiaries of the Closing Statement, negotiate, settle and compromise any dispute with respect to the Closing Statement and terms of this Section 6.1(c).
(iv) take all other actions the Shareholders’ Representatives deem necessary A unanimous decision, act, consent or appropriate for the accomplishment of the foregoing.
(d) If all instruction of the Shareholders’ Representatives resign from such position, such Shareholders’ ' Representatives shall designate constitute a replacement Shareholders’ Representative prior to such resignation or, if the Shareholders’ Representatives shall fail to do so, a replacement Shareholders’ Representatives decision of all Company Shareholders and shall be appointed by the Persons (other than the resigning Shareholders’ Representatives) who held a majority of the Shares immediately prior to the Closing Date shall have the right to appoint a successor Shareholders’ Representatives. The prior final, binding and conclusive upon each such Company Shareholders and Itron may rely upon any written decision, act, consent of Buyer shall be required for the appointment of any replacement Shareholders’ Representatives who is not a Shareholder or an employee of a Shareholder.
(e) Buyer shall be entitled to conclusively rely on all statements, representations and decisions instruction of the Shareholders’ ' Representatives as those being the decision, act, consent or instruction of the Company Shareholders. Itron is hereby relieved from any liability to any Person for any acts done by them in accordance with such written decision, act, consent or instruction of the Shareholders, without any independent investigation or verification' Representatives.
Appears in 1 contract
