Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx (together with his permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders individually); (ii) authorize deliveries to Parent of Company Escrow Shares from the Company Escrow Fund in satisfaction of claims asserted by any member of the Parent Group; (iii) object to such claims pursuant to the terms hereof and/or the Escrow Agreement; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, against any such stockholder or by any such stockholder against any member of the Parent Group or any dispute between any member of the Parent Group and any such stockholder, in each case, relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The person serving as the Stockholder Representative may be replaced from time to time by the holders a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund upon not less than ten (10) days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the Company. (b) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. (c) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative. (d) Without limiting the generality or effect of Section 7.6(a) hereof, any and all claims and disputes between or among any member of the Parent Group, the Stockholder Representative and/or any one or more stockholders of the Company relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder (other than any claim against or dispute with the Stockholder Representative) be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder (and not by such stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By Each Principal Stockholder and, by virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such other Stockholder (regardless of whether or not such stockholder other Stockholder votes in favor of the adoption of the this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) ), hereby initially appoints, as of the date of this Agreement, Xxxxxxx Xxxx X. XxXxxx XxXxxxxxx, Xx. (together with his permitted successors, the “"Stockholder Representative”"), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions Related Agreement and any transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent and/or the Escrow Agent (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders individually); (ii) authorize deliveries to Parent of Company Escrow Shares from the Company Escrow Fund in satisfaction of claims asserted by any member receive payment of the Merger Consideration from Parent Groupor Merger Sub and transmit such payment to Company Stockholders as appropriate; (iii) object to such and settle any claims pursuant by Parent to the terms hereof and/or the Escrow AgreementHoldback Amount; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, Indemnified Party against any such stockholder Stockholder or by any such stockholder Stockholder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderStockholder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other Related Agreement or other agreement referred to herein or contemplated hereby; and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance.
(b) Xxxx X. XxXxxxxxx, Xx. hereby accepts his appointment as Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund Holdback Amount upon not less than ten (10) 10 days’ ' prior written notice to Parent and with Parent’s 's written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative may arrange to receive reimbursement directly from the Stockholders for any and all expenses, charges and liabilities, including attorneys' fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this agreement; provided, however, that neither Parent nor the Surviving Corporation shall have any liability with respect to such items.
(ce) The Stockholder Representative shall have access to relevant information about the Surviving Corporation and the reasonable assistance of the Surviving Corporation's officers and Employees for purposes of performing his duties and exercising his rights hereunder; provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(f) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group and the Escrow Agent Indemnified Party shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group and the Escrow Agent are Each Indemnified Party is hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(dg) Without Except for matters that are subject to Section 6.4, and without limiting the generality or effect of Section 7.6(a) hereof6.6(a), any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or any one or more stockholders of the Company Stockholders relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder (and not by such stockholder Stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx the individual identified as the Stockholder Representative on the signature page of this Agreement (together with his his/her permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions Related Agreement and any transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and with respect to claims for indemnification by Indemnified Parties affiliated with Parent under this Article 6 for which recovery from the Escrow Amount is sought only, to: (i) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders individually); (ii) authorize deliveries to Parent of Company Escrow Shares cash or shares of Parent Common Stock from the Company Escrow Fund Amount in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Groupother Indemnified Party, including by not objecting to claims thereto); (iii) object to such any claims pursuant by Parent or any other Indemnified Party to the terms hereof and/or the Escrow AgreementAmount; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of or arbitrators with respect to, to such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, Indemnified Party against any such stockholder Indemnifying Party or by any such stockholder Indemnifying Party against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderIndemnifying Party, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other Related Agreement or other agreement referred to herein or contemplated hereby; and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. circumstance (except as otherwise agreed to by the Stockholder Representative).
(b) The individual identified on the signature page to this Agreement as the Stockholder Representative hereby accepts his appointment as the Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund Amount upon not less than ten (10) days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices With respect to the authorized duties and powers of the Stockholder Representative, notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company Indemnifying Party for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders Indemnifying Parties shall severally (and not jointly) indemnify the Stockholder Representative and hold him him/her harmless against any loss, liability Liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his his/her duties hereunder. The Stockholder Representative may arrange to receive reimbursement directly from the Indemnifying Parties for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his/her rights and obligations under this Agreement; provided, however, that neither Parent, the Transitory Surviving Corporation nor the Surviving Company shall have any Liability with respect to such items. If not paid directly to the Stockholder Representative by the Indemnifying Parties, such expenses, charges and liabilities may be recovered by the Stockholder Representative from Escrow Cash and Escrow Stock otherwise distributable to the Indemnifying Parties (and not distributed or distributable to any Indemnified Party or subject to a pending indemnification claim of any Indemnified Party) following the expiration of the Escrow Release Date, at the time of distribution, and such recovery will be made from the Indemnifying Parties according to their respective Pro Rata Shares.
(ce) Any The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of the Continuing Employees for purposes of performing his/her duties and exercising his/her rights hereunder; provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(f) With respect to the authorized duties and powers of the Stockholder Representative, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such StockholderIndemnifying Party; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderIndemnifying Party. Except for their gross negligence and willful misconduct, each member of the Parent Group Each Indemnified Party and the Escrow Agent are hereby relieved from any liability Liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(d) Without limiting Representative pursuant to the generality or effect terms of Section 7.6(a) hereof, any this Article 6 and all claims and disputes between or among any member of the Parent Group, the Stockholder Representative and/or any one or more stockholders of the Company relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder (other than any claim against or dispute with the Stockholder Representative) be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder (and not by such stockholder acting on its own behalf)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder Stockholder votes in favor of the adoption of the this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this AgreementAgreement Date, Xxxxxxx X. XxXxxx Pxxx Xxxxxxxx (together with his permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent and/or the Escrow Agent (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders individually); (ii) authorize deliveries object to any claims by Parent of Company Escrow Shares from against the Company Escrow Fund in satisfaction of claims asserted by any member of the Parent GroupIndemnity Withhold Shares; (iii) object to such claims pursuant to the terms hereof and/or the Escrow Agreement; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims; (viv) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, Indemnified Party against any such stockholder Stockholder or by any such stockholder Stockholder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderStockholder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (viv) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ixvi) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person Stockholder under any circumstance. .
(b) Pxxx Xxxxxxxx hereby accepts his appointment as Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Indemnity Withhold Shares that are then on deposit in the Company Escrow Fund upon not less than ten (10) -days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder under this Agreement as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunderunder this Agreement. The Stockholder Representative may arrange to receive reimbursement directly from the Stockholders for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this agreement; provided, however, that neither Parent nor the Surviving Corporation shall have any liability with respect to such items.
(ce) The Stockholder Representative shall have access to relevant information about the Company (and the Surviving Corporation) and the reasonable assistance of the Surviving Corporation’s officers and Employees for purposes of performing his duties and exercising his rights under this Agreement; provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(f) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group and the Escrow Agent Indemnified Party shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group and the Escrow Agent are Each Indemnified Party is hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(dg) Without Except for matters that are subject to Section 6.4, and without limiting the generality or effect of Section 7.6(a) hereof6.9(a), any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or or any one or more stockholders of the Company Stockholders relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder (and not by such stockholder Stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the StockholdersStockholders and by virtue each Non-Exercising Payee being permitted to participate in the Merger as set forth in Section 7.13(b)(ii), each such Stockholder (regardless of whether or not such stockholder Stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) and each Non-Exercising Payee hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx (together with his permitted successors, the “Stockholder Representative”)Xxxxxx Xxxx, as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions transactions contemplated by this Agreement and any Transactions transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders or Non-Exercising Payee individually); (ii) authorize deliveries to Parent of Company Escrow Shares cash from the Company Escrow Fund Account in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Groupother Indemnified Party, including by not objecting to such claims); (iii) object to such claims pursuant to the terms hereof and/or the Escrow AgreementSection 10.4; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent GroupIndemnified Party, against any such stockholder Stockholder or Non-Exercising Payee or by any such stockholder Stockholder or Non-Exercising Payee against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderStockholder or Non-Exercising Payee, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund Account upon not less than ten (10) days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders and Non-Exercising Payees.
(b) The Stockholder Representative shall not be liable to any Stockholder of the Company or Non-Exercising Payee for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative Stockholders and Non-Exercising Payees shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative shall be reimbursed for reasonable expenses incurred in the performance of his duties (including, without limitation, the reasonable fees of counsel), and such fees shall be paid out of the Escrow Account pursuant to the terms of the Escrow Agreement provided that the sum of the amount of such reimbursement and the amount of any costs deducted from the Escrow Account pursuant to Section 2.6(d)(v) hereof shall be limited to $100,000 in the aggregate; provided, however, that such $100,000 limit shall in no way limit the Stockholder Representative’s right to indemnification under this Section 10.5(b); and provided, further, that the Stockholder Representative shall be reimbursed for reasonable expenses incurred in the performance of his duties (including, without limitation, the reasonable fees of counsel) in excess of such $100,000 limit, but only out of any portion of the Escrow Amount that would otherwise be released and paid to the Stockholders and Non-Exercising Payees pursuant to the terms of the Escrow Agreement.
(c) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of the Company’s employees for purposes of performing its duties and exercising its rights hereunder; provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and Non-Exercising Payees and shall be final, binding and conclusive upon each such StockholderStockholder or Non-Exercising Payee; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder or Non-Exercising Payee. Except for their gross negligence and willful misconduct, each member of the Parent Group Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(de) Without Except for matters that are subject to Section 10.4, and without limiting the generality or effect of Section 7.6(a10.5(a) hereof, any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or any one or more stockholders of the Company Stockholders or Non-Exercising Payees relating to this Agreement, Agreement or the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder or Non-Exercising Payee (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder or Non-Exercising Payee (and not by such stockholder Stockholder or Non-Exercising Payee acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder Stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx Edward G. Sim (together with his permitted successors, the “Stockholder Representative”"Stockholdex Xxxxxxxntative"), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions transactions contemplated by this Agreement and any Transactions transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent (on behalf of itself of any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders individually); (ii) authorize deliveries to Parent of Company Escrow Shares cash from the Company Escrow Fund in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Groupother Indemnified Party, including by not objecting to such claims); (iii) object to such claims pursuant to the terms hereof and/or the Escrow AgreementSection 9.4; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent GroupIndemnified Party, against any such stockholder or by any such stockholder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are cash then on deposit in the Company Escrow Fund upon not less than ten (10) days’ ' prior written notice to Parent and with Parent’s 's written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(b) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative shall be reimbursed for reasonable expenses incurred in the performance of his duties (including without limitation the reasonable fees of counsel), and such fees shall be paid out of the Escrow Fund pursuant to the terms of the Escrow Agreement provided that the sum of the amount of such reimbursement and the amount of any costs deducted from the Escrow Account pursuant to Section 1.6(f)(v)(C) hereof shall be limited to $100,000 in the aggregate; provided, however, that such $100,000 limit shall in no way limit the Stockholder Representative's right to indemnification under this Section 9.5(b).
(c) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of the Company's officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(de) Without Except for matters that are subject to Section 9.4, and without limiting the generality or effect of Section 7.6(a9.5(a) hereof, any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or any one or more stockholders of the Company Stockholders relating to this Agreement, Agreement or the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder (and not by such stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the StockholdersStockholders and by accepting any consideration under this Agreement, each such Stockholder Company Securityholder (regardless of whether or not such stockholder other Stockholder votes in favor of the adoption of the this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) ), hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx Xxx Xxxxxxxxxxx (together with his permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent and/or the Escrow Agent (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders individually); (ii) authorize deliveries object to Parent of Company Escrow Shares from the Company Escrow Fund in satisfaction of claims asserted by and settle any member of the Parent GroupIndemnity Claims; (iii) object to such claims pursuant to the terms hereof and/or the Escrow Agreement; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims; (viv) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, Indemnified Party against any such stockholder Stockholder or by any such stockholder Stockholder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderStockholder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (viv) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ixvi) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. .
(b) Xxx Xxxxxxxxxxx hereby accepts his appointment as Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund Key Stockholders upon not less than ten (10) days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative may arrange to receive reimbursement directly from the Stockholders for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this Agreement; provided, however, that neither Parent, the Surviving Corporation I nor Merger Sub II shall have any liability with respect to such items.
(ce) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group and the Escrow Agent Indemnified Party shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group and the Escrow Agent are Each Indemnified Party is hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(df) Without limiting the generality or effect of Section 7.6(a) hereof, any Any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or any one or more stockholders of the Company Stockholders relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder (and not by such stockholder Stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder Stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx Xxx Xxxxxx (together with his permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions transactions contemplated by this Agreement and any Transactions transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Stockholders individually); , (ii) authorize deliveries to Parent of Company cash from (A) the Working Capital Escrow Shares from Amount to provide a source of funding to Parent for any Working Capital Deficiency and (B) the Company Indemnity Escrow Fund Amount in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Group; other Indemnified Party, including by not objecting to such claims), (iii) object to such claims pursuant to the terms hereof and/or the Escrow Agreement; Section 10.4, (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; , (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent GroupIndemnified Party, against any such stockholder Stockholder or by any such stockholder Stockholder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderStockholder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; , (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; , and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Indemnity Escrow Shares that are then on deposit in the Company Escrow Fund Amount upon not less than ten (10) days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyStockholders.
(b) The Stockholder Representative shall not be liable to any Stockholder of the Company for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative shall be reimbursed for reasonable expenses incurred in the performance of his duties (including, without limitation, the reasonable fees of counsel), and (i) such fees related to costs and charges of the Accounting Referee’s review and report shall be paid out of the Working Capital Escrow Amount and (ii) such other fees shall be paid out of the Indemnity Escrow Amount, pursuant to the terms of the Escrow Agreement.
(c) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of the Company’s officers and the employees for purposes of performing its duties and exercising its rights hereunder; provided, however, that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderStockholder. Except for their gross negligence and willful misconduct, each member of the Parent Group Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(de) Without Except for matters that are subject to Section 10.4, and without limiting the generality or effect of Section 7.6(a) hereof10.5(a), any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or any one or more stockholders of the Company Stockholders relating to this Agreement, Agreement or the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Stockholder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Stockholder (and not by such stockholder Stockholder acting on its own behalf).
Appears in 1 contract
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder (regardless of whether or not such stockholder votes in favor of the adoption of the Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this Agreement, Xxxxxxx X. XxXxxx Xxxxx Xxxxxxxx (together with his permitted successors, the “Stockholder Representative”), is appointed as his, her or its the true and lawful agent and attorney-in-fact for each Participating Holder to enter into the Escrow Agreement and to enter into any agreement in connection with the Transactions contemplated by amendment to, or grant any waiver under, this Agreement and any Transactions contemplated by after the Escrow AgreementClosing, and to: (i) give and receive notices and communications to or from Parent and/or (on behalf of itself or any other Indemnified Party) or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby Transactions (except to the extent that this Agreement, Escrow Agreement or any Transaction the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Participating Holders individually); (ii) authorize deliveries to Parent of Company Escrow Shares cash from the Company Escrow Fund Amount in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Groupother Indemnified Party, including by not objecting to claims thereto); (iii) object to such any claims pursuant asserted by Parent or any other Indemnified Party to the terms hereof and/or the Escrow AgreementAmount; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims; and (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, against any such stockholder or by any such stockholder against any member of the Parent Group or any dispute between any member of the Parent Group and any such stockholder, in each case, relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or thereby; (vi) amend this Agreement, the Escrow Agreement, any Transaction Agreement or any other agreement referred to herein or contemplated hereby; (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. .
(b) Xxxxx Xxxxxxxx hereby accepts his appointment as Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund Amount upon not less than ten (10) 10 days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of Participating Holders, except for any notices to the CompanyParticipating Holders under Section 4.15.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company Participating Holder for any act done or omitted hereunder under this Agreement or the Escrow Agreement as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative Participating Holders shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders shall jointly and severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunderunder this Agreement. The Stockholder Representative may receive reimbursement directly from the Participating Holders (or from any distribution to the Participating Holders to be made under the Escrow Agreement) for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this agreement; provided, however, that none of the Parent, the Surviving Corporation or the Merger LLC or any of their respective Affiliates shall have any liability with respect to such items.
(ce) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of Parent’s employees, upon reasonable notice, during normal business hours and in a manner that does not disrupt or interfere with business operations, for purposes of performing his duties and exercising his rights under this Agreement and the Escrow Agreement; provided that the Stockholder Representative shall treat confidentially and not use or disclose to anyone any nonpublic information from or about the Company (except for disclosures on a need to know basis to individuals who agree to treat such information confidentially under terms of a confidentiality agreement reasonably acceptable to Parent).
(f) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders Participating Holders and shall be final, binding and conclusive upon each such StockholderParticipating Holder; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderParticipating Holder. Except for their gross negligence and willful misconduct, each member of the Parent Group Each Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(dg) Without limiting the generality or effect of Section 7.6(a) hereof6.6(a), any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or or any one or more stockholders of the Company Participating Holders relating to this Agreement, Agreement or the Escrow Agreement any Transaction Agreement or the Transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Participating Holder (other than any claim against or dispute with the Stockholder Representative) Representative or under Section 4.15), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Participating Holder (and not by such stockholder Participating Holder acting on its own behalf). The parties hereby acknowledge and agree that this Agreement may be enforced, and except as set forth in Section 9.9 or as otherwise required by applicable Law, any amendment to or waiver under this Agreement may be agreed to or granted, on behalf of the Participating Holders by the Stockholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Red Hat Inc)
Stockholder Representative; Power of Attorney. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders, each such Stockholder Participating Holder (regardless of whether or not such stockholder Stockholder votes in favor of the adoption of the this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof) hereby initially appoints, as of the date of this AgreementAgreement Date, Xxxxxxx X. XxXxxx Xxxx Xxxxxxxx (together with his permitted successors, the “Stockholder Representative”), as his, her or its true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Transactions other Transaction Agreement and any transactions contemplated by this Agreement and any Transactions contemplated by the Escrow Agreement, and to: (i) give and receive notices and communications to or from Parent and/or (on behalf of itself or any other Indemnified Party) or the Escrow Agent relating to this Agreement, the Escrow Agreement, any Transaction Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, Escrow Agreement or any Transaction Agreement expressly contemplates that any such notice or communication shall be given or received by such stockholders Participating Holders individually); (ii) authorize deliveries to Parent of Company Escrow Shares cash from the Company Escrow Fund in satisfaction of claims asserted by Parent (on behalf of itself or any member of the Parent Groupother Indemnified Party, including by not objecting to claims thereto); (iii) object to such any claims pursuant by Parent to the terms hereof and/or the Escrow AgreementFund; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims; (v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any member of the Parent Group, Indemnified Party against any such stockholder Participating Holder or by any such stockholder Participating Holder against any member of the Parent Group Indemnified Party or any dispute between any member of the Parent Group Indemnified Party and any such stockholderParticipating Holder, in each case, case relating to this Agreement, the Escrow Agreement, any Transaction Agreement or the transactions contemplated hereby or therebyhereby; (vi) amend this Agreement, the Escrow Agreement, Agreement or any other Transaction Agreement or any other agreement referred to herein or contemplated hereby; and (vii) make or defend any indemnification claims under this Agreement; (viii) represent the stockholders in connection with any Tax matter; and (ix) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. .
(b) Xxxx Xxxxxxxx hereby accepts his appointment as Stockholder Representative.
(c) The person serving as the Stockholder Representative may be replaced from time to time by the holders of a majority in interest of the Company Escrow Shares that are then on deposit in the Company Escrow Fund upon not less than ten (10) 10 days’ prior written notice to Parent and with Parent’s written consent, which shall not be unreasonably withheld; provided, however, notwithstanding any provision of this Agreement to the contrary, without Parent’s prior written consent, which such consent may be withheld by Parent for any reason or for no reason, no individual who is serving as director on Parent’s Board of Directors may serve as the Stockholder Representative. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the stockholders of the CompanyParticipating Holders.
(bd) The Stockholder Representative shall not be liable to any Stockholder of the Company Participating Holder for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholder Representative shall not be required to take any action hereunder unless he receives indemnification from the Stockholders reasonably satisfactory to him under which one or more Stockholders Participating Holders shall severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. The Stockholder Representative may arrange to receive reimbursement directly from the Participating Holders for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this Agreement; provided, however, that neither Parent nor the Surviving Corporation shall have any liability with respect to such items. If not paid directly to the Stockholder Representative by the Participating Holders, any such unpaid expenses, charges and liabilities may be recovered by the Stockholder Representative from the cash deposited in the Escrow Fund that is otherwise distributable to the Participating Holders (and not distributed or distributable to any Indemnified Parties or subject to any pending Indemnification Claim) pursuant to the terms hereof, at the time of any such distribution to the Participating Holders after the Escrow Termination Date. Upon written notice to the Escrow Agent and Parent, the Stockholder Representative shall be entitled to recover any such expenses, in an aggregate amount not to exceed $300,000, from the Escrow Fund immediately prior to the distribution of any Escrow Funds to the Participating Holders.
(ce) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of the Company’s officers and Employees for purposes of performing his duties and exercising his rights hereunder; provided that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(f) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders Participating Holders and shall be final, binding and conclusive upon each such StockholderParticipating Holder; and each member of the Parent Group Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such stockholderParticipating Holder. Except for their gross negligence and willful misconduct, each member of the Parent Group Each Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative.
(dg) Without Except for matters that are subject to Section 6.4, and without limiting the generality or effect of Section 7.6(a) hereof6.6(a), any and all claims and disputes between or among any member of the Parent GroupIndemnified Party, the Stockholder Representative and/or or any one or more stockholders of the Company Participating Holders relating to this Agreement, the Escrow Agreement any Transaction Agreement or the Transactions transactions contemplated hereby or thereby shall in the case of any claim or dispute asserted by or against or involving any such stockholder Participating Holder (other than any claim against or dispute with the Stockholder Representative) ), be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such stockholder Participating Holder (and not by such stockholder Participating Holder acting on its own behalf).
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