Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet as its agent and attorney-in-fact (the “Stockholders’ Representative ”) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
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Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such a) The Company Stockholders, if anyby approving this Agreement and the transactions contemplated hereby, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed hereby irrevocably appoint Xxxxxxx Xxxxxxx as Stockholders’ Representative, including to have agreed to appoint CommerceNet act as its their agent and attorney-in-fact (for purposes of Section 10 and the “Escrow Agreement, and consent to the taking by the Stockholders’ Representative ”) for of any and on behalf all actions and the making of any decisions required or permitted to be taken by him under this Agreement and the Escrow Agreement (including the exercise of the Company Stockholders power to act for the Company Stockholders with regard authorize delivery to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset Parent of the Holdback Shares Escrow Funds in satisfaction of claims by any Indemnified Person, object to such paymentsParent or otherwise, agree to, negotiate, enter into settlements and compromises ofof and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such claimsclaims or otherwise, assertresolve any claims made pursuant to Section 10 and the Escrow Agreement, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by foregoing). By his execution of the terms Escrow Agreement, Xxxxxxx Xxxxxxx hereby accepts his appointment as the Stockholders’ Representative for purposes of this Section 10 and the Escrow Agreement. Each Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Stockholder agrees to receive correspondence from by the Stockholders’ Representative, including in electronic form. Such agency may and on any other action taken or purported to be changed taken on behalf of any Company Stockholder by the Stockholders’ Representative, as fully binding upon such Company Stockholders with the right to receive a majority Stockholder. The rights and obligations of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon as set forth in the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback SharesEscrow Agreement. If the Stockholders’ Representative shall be removeddie, resign become disabled or otherwise be unable to fulfill his responsibilities hereunder, as agent of the Company Stockholders shall Stockholders, then the Escrow Contributors who held a majority of the voting Company Capital Stock immediately prior to the Merger (the “Requisite Former Company Stockholders”) are authorized and shall, within 10 days after such death or disability, appoint a successor to the Stockholders’ Representativeagent and, and promptly thereafter, shall immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed become the former “Stockholders’ Representative” for purposes of this Agreement and the Escrow Agreement. If for any reason there is no Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representativeat any time, and all references herein to the Stockholders’ Representative shall not receive any compensation for his services. A decision, act, consent or instruction of be deemed to refer to the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Requisite Former Company Stockholders.
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Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of (a) The Stockholders hereby irrevocably appoint the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders’ Representative as the exclusive proxy, if anyrepresentative, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet as its agent and attorney-in-fact (of each of the “Stockholders’ Representative ”) Stockholders for all purposes under this Agreement, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of such Stockholders at any time, in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, this Agreement and the Ancillary Agreements contemplated hereunder, and to facilitate the consummation of the Merger, and in connection with the activities to be performed by or on behalf of the Company Stockholders to act for under this Agreement and the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises ofAncillary Agreements, and comply each other agreement, document, instrument or certificate referred to herein or therein (including in connection with orders of courts with respect to such claims, assert, negotiate, enter into settlements any and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating all claims for indemnification brought pursuant to this Agreement or the transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this AgreementAncillary Agreements). Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the The Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such days’ prior written notice or (B) to each Stockholder and Buyer. Upon the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required resignation of the Stockholders’ Representative, and such Stockholders who, immediately prior to the Effective Time, held a majority of the Company Stock shall appoint a replacement Stockholders’ Representative to serve in accordance with the terms of this Agreement, provided, that if the holders of a majority of the Company Stock fail to appoint a replacement Stockholder Representative in accordance with the preceding clause of this sentence within forty-five (45) days of such Stockholders’ Representative resigning or becoming unable to serve, then Buyer shall have the right to replace the Stockholder’ Representative who shall serve until a successor is duly appointed by a majority of the Stockholders party to this Agreement. The Stockholders’ Representative shall have no other duties or obligations, at law, in equity, by contract or otherwise, to act on behalf of any Stockholder, except for those duties or obligations expressly set forth in this Agreement. The appointment as Stockholders’ Representative shall not receive be deemed to create any compensation for his services. A decision, act, consent partnership or instruction of other fiduciary or similar relationship between the Stockholders’ Representative, including an amendment, extension Representative or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholdersany Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Endo International PLC)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet Long Deng is hereby appointed as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders each Stockholder, (i) to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to or by Parent and Purchaser for any purpose under this Agreement and the Additional Agreements, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (ii) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, assert, negotiate, (iii) to enter into settlements and compromises ofdeliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to Parent, Purchaser and comply the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent, Purchaser and the Surviving Corporation in accordance with orders the provisions of courts the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with respect tothe provisions of the Agreement, the securities described herein and any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger and (vi) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding time upon no less than twenty (20) days prior written notice to the foregoingPurchaser and, if after the Effective Time, the Surviving Corporation, provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the Company transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback SharesCompany Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. If Any removal or change of the Stockholders’ Representative shall not be removed, resign or otherwise be unable effective until written notice is delivered to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderPurchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Stockholders of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders.. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Notwithstanding anything in this Section 14.15 to the contrary, the Stockholders’ Representative (in his capacity as such) shall have no obligation or authority with respect to any indemnification claims against a Stockholder made by a Purchaser Indemnitee under Section 11.1. [The remainder of this page intentionally left blank; signature pages to follow]
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Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company StockholdersATW Master Fund II, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet L.P. is hereby appointed as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders each Stockholder, (i) to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to or by Parent for any purpose under this Agreement, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (ii) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Article X or other disputes arising under or related to this Agreement, assert(iii) to act on behalf of Stockholders in accordance with the provisions of the Agreement, negotiate, enter into settlements the securities described herein and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger and (iv) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding time upon no less than twenty (20) days prior written notice to Parent and, if after the foregoingEffective Time, the Surviving Corporation, provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the Company transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback SharesCompany Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. If Any removal or change of the Stockholders’ Representative shall not be removed, resign or otherwise be unable effective until written notice is delivered to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderParent. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders.. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Notwithstanding anything in this Section 13..13. to the contrary, the Stockholders’ Representative (in its capacity as such) shall have no obligation or authority with respect to any indemnification claims against a Stockholder made by a Parent Indemnitee under Section 10.1(a). [The remainder of this page intentionally left blank; signature pages to follow]
Appears in 1 contract
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue By the adoption of the approval Merger, and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholdersby receiving the benefits thereof, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting including any consideration payable hereunder hereunder, each Company Stockholder shall be deemed to have agreed to appoint CommerceNet appointed, and Shareholder Representative Services LLC is hereby appointed by the Company Stockholders, as its of the Closing, as representative, agent and attorney-in-fact for each Company Stockholder for all purposes in connection with this Agreement and the agreements ancillary hereto, (the “Stockholders’ Representative ”a) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to Parent for any purpose under this Agreement and the Transaction Documents, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (b) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany disputes arising under or related to this Agreement, assert(c) to act on behalf of Company Stockholders in accordance with the provisions of the Agreement, negotiate, enter into settlements the securities described herein and compromises ofany other document or instrument executed in connection with the Agreement and the Merger, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby and (d) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Each Company Stockholder agrees to receive correspondence from the The Stockholders’ RepresentativeRepresentative may resign at any time, including in electronic form. Such and such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoingtime upon no less than twenty (20) days prior written notice to Parent; provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Shares outstanding immediately prior to the Company Effective Time agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor Shares outstanding immediately prior to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successorEffective Time. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required removal or change of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his servicesbe effective until written notice is delivered to Parent. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Company Stockholders. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders. The Stockholders’ Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders, on a several basis in accordance with each Company Stockholder’s pro rata right to receive Earnout Shares, shall indemnify the Stockholders’ Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, Parent will wire $100,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for any expenses incurred by the Stockholders’ Representative pursuant to this Agreement. Parent, the Company and the Company Stockholders shall not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative shall deliver any remaining balance of the Expense Fund to Parent. The parties agree that the Stockholders’ Representative is not responsible for any tax reporting or withholding in connection with the distribution of the Expense Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Big Cypress Acquisition Corp.)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of (a) Effective only upon the approval Effective Time, Xxxx Xxxxx (such person and adoption of this Agreement any successor or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet as its agent and attorney-in-fact (successors being the “Stockholders’ Representative Representative”) for shall act as the representative of the Company Stockholders, and shall be authorized to act on behalf of the Company Stockholders and to act take any and all actions required or permitted to be taken by the Stockholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article IX and with respect to any actions to be taken by the Company Stockholders with regard Stockholders’ Representative pursuant to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset the terms of the Holdback Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of Escrow Shares to a Parent Indemnified Party in satisfaction of claims by any a Parent Indemnified PersonParty, object to such payments, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements any claims for indemnification and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby and to (iii) take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by foregoing). In all matters relating to this Article IX as described in the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representativepreceding sentence, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable the only party entitled to fulfill his responsibilities hereunder, assert the rights of the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his servicesperform all of the obligations of the Company Stockholders hereunder. A decisionThe Parent Indemnified Parties shall be entitled to rely on all statements, act, consent or instruction representations and decisions of the Stockholders’ Representative, including an amendment, extension or waiver of . The Stockholders’ Representative is not entitled to amend this Agreement pursuant or take any actions relating to its authority hereunderthis Agreement prior to the Effective Time. Following the Effective Time, shall constitute a decision the Stockholders’ Representative may amend this Agreement with the prior written consent of the Company Stockholders holders of a majority-in-interest in the Escrow Funds. The Stockholders’ Representative may resign upon not less than 20 business days’ prior written notice to Parent and shall be final, binding and conclusive upon the Company Stockholders. The Company Stockholders by the vote of a majority-in-interest of the Escrow Funds may remove the Stockholders’ Representative from time to time upon not less than 20 business days’ prior written notice to Parent. Any vacancy in the position of the Stockholders’ Representative may be filled by the approval of the holders of a majority-in-interest in the Escrow Funds. Any successor Stockholders’ Representative shall acknowledge in writing to Parent her acceptance of her appointment as Stockholders’ Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Genome Therapeutics Corp)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by By virtue of the approval and adoption of this Agreement and the Transactions, including the approval of the principal terms of the Merger and the consummation of the Merger, or other appointment authorization documentation (other than such Company Stockholdersparticipating in the Merger and receiving the benefits thereof, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any including the right to receive the consideration payable hereunder in connection with the Merger, each Company Securityholder shall be deemed to have agreed to appoint CommerceNet appointed the designation of, and hereby designates, Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Stockholders’ Representative ”) for and on behalf as of the Company Stockholders Closing for all purposes in connection with this Agreement and any agreement ancillary hereto, including (a) to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset communications to Parent for any purpose under this Agreement and the Additional Agreements; (b) to act on behalf of Company Securityholders in accordance with the provisions of the Holdback Shares in satisfaction of claims by any Indemnified PersonAgreement, object to such payments, agree to, negotiate, enter into settlements the securities described herein and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger; and (c) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Each Company Stockholder agrees to receive correspondence from the The Stockholders’ Representative, including in electronic formRepresentative may resign at any time. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares Securityholders from time to time. Notwithstanding the foregoingtime upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may resign at any time by providing written notice not be removed unless holders of intent to resign a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Company Effective Time agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign Company Securities (on an as converted or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor exercised basis) outstanding immediately prior to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderEffective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, and except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not receive be liable for any compensation for his servicesaction or omission pursuant to the advice of counsel. A decisionThe Company Securityholders will indemnify, actdefend and hold harmless the Stockholders’ Representative from and against any and all losses, consent liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or instruction in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, including an amendmentthe Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, extension any such Representative Losses may be recovered by the Stockholders’ Representative from the funds in the Expense Fund; provided that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or waiver of this Agreement pursuant incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its authority hereunder, shall constitute a decision own funds on behalf of the Company Stockholders and shall be finalSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, binding and conclusive upon any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 12.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will wire $15,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. Neither the Company nor the Company Securityholders will receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Expense Fund to the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FS Development Corp. II)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company StockholdersATW Master Fund II, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet L.P. is hereby appointed as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders each Stockholder, (i) to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to or by Parent and Purchaser for any purpose under this Agreement, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (ii) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, assert(iii) to act on behalf of Stockholders in accordance with the provisions of the Agreement, negotiate, enter into settlements the securities described herein and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger and (iv) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding time upon no less than twenty (20) days prior written notice to the foregoingPurchaser and, if after the Effective Time, the Surviving Corporation, provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the Company transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback SharesCompany Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. If Any removal or change of the Stockholders’ Representative shall not be removed, resign or otherwise be unable effective until written notice is delivered to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderPurchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders.. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Notwithstanding anything in this Section 14.14 to the contrary, the Stockholders’ Representative (in its capacity as such) shall have no obligation or authority with respect to any indemnification claims against a Stockholder made by a Purchaser Indemnitee under Section 11.1(a). [The remainder of this page intentionally left blank; signature pages to follow]
Appears in 1 contract
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of (a) At the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company StockholdersEffective Time, if anyWarburg Pincus Private Equity VIII, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder L.P. shall be deemed to have agreed to appoint CommerceNet constituted and appointed as its the Stockholders Representative. The Stockholders Representative shall be the exclusive agent and attorney-in-fact (the “Stockholders’ Representative ”) for and on behalf of the Company Stockholders current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants immediately prior to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, Effective Time to: (i) give and receive notices and communicationscommunications to or from Mercury (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, authorize offset the Escrow Agreement or any of the Holdback Shares transactions and other matters contemplated hereby or thereby; (ii) authorize deliveries to Mercury of cash from the Escrow Fund in satisfaction of claims asserted by Mercury (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (iii) object to such payments, claims in accordance with Section 7.6; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements demand mediation and compromises of, arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby such claims; and to (v) take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Stockholders Representative for the accomplishment of the foregoing foregoing, in each case without having to seek or (ii) specifically mandated by obtain the terms consent of this Agreementany Person under any circumstance. Each Company Stockholder agrees The Stockholders Representative shall be the sole and exclusive means of asserting or addressing any of the above and no current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants immediately prior to receive correspondence from the Stockholders’ Effective Time shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Stockholders Representative, including in electronic form. Such agency The Person serving as the Stockholders Representative may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares replaced from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If shares or other property then on deposit in the StockholdersEscrow Fund upon not less than ten days’ Representative shall be removed, resign or otherwise be unable prior written notice to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderMercury. No bond shall be required of the Stockholders’ Stockholders Representative, and the Stockholders’ Stockholders Representative shall not receive any no compensation for his services. A decision, act, consent Notices or instruction communications to or from the Stockholders Representative shall constitute notice to or from each of the Stockholders’ Representativeholders of Systinet Capital Stock, including an amendment, extension or waiver of this Agreement pursuant Systinet Options and Systinet Warrants immediately prior to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company StockholdersEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mercury Interactive Corp)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet Xiao Mou Zhang is hereby appointed as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders each Stockholder, (i) to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to or by Parent for any purpose under this Agreement and the Additional Agreements, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (ii) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Article X or other disputes arising under or related to this Agreement, assert, negotiate, (iii) to enter into settlements and compromises ofdeliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to Parent or the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent or the Surviving Corporation in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger and (vi) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding time upon no less than twenty (20) days prior written notice to the foregoingParent and, if after the Effective Time, the Surviving Corporation, provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the Company transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback SharesCompany Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. If Any removal or change of the Stockholders’ Representative shall not be removed, resign or otherwise be unable effective until written notice is delivered to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderParent. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his servicesservices as such. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Stockholders of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Notwithstanding anything in this Article 13.14 to the contrary, the Stockholders’ Representative (in his capacity as such) shall have no obligation or authority with respect to any indemnification claims against a Stockholder made by a Parent Indemnitee under Article X hereof.
Appears in 1 contract
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by By virtue of the approval and adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger and the consummation of the Merger or other appointment authorization documentation (other than such Company Stockholdersparticipating in the Merger and receiving the benefits thereof, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any including the right to receive the consideration payable hereunder in connection with the Merger, each Company Securityholder shall be deemed to have agreed to appoint CommerceNet appointed the designation of, and hereby designates, Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Stockholders’ Representative ”for all purposes in connection with this Agreement and any agreement ancillary hereto, including (a) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of communications to Parent for any purpose under this Agreement and the Holdback Shares in satisfaction of claims by any Indemnified Person, object Additional Agreements; (b) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Section 11.1 or, assertfollowing the Closing, negotiate, other disputes arising under or related to this Agreement; (c) to enter into settlements and compromises ofdeliver the Escrow Agreement on behalf of each of the Company Securityholders; (d) to authorize or object to delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent in accordance with the provisions of the Escrow Agreement; (e) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger; and (f) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Each Company Stockholder agrees to receive correspondence from the The Stockholders’ Representative, including in electronic formRepresentative may resign at any time. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares Securityholders from time to time. Notwithstanding the foregoingtime upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may resign at any time by providing written notice not be removed unless holders of intent to resign a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Company Effective Time agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign Company Securities (on an as converted or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor exercised basis) outstanding immediately prior to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderEffective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, and except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not receive be liable for any compensation for his servicesaction or omission pursuant to the advice of counsel. A decisionThe Company Securityholders will indemnify, actdefend and hold harmless the Stockholders’ Representative from and against any and all losses, consent liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or instruction in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, including an amendmentthe Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, extension any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or waiver of this Agreement pursuant incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its authority hereunder, shall constitute a decision own funds on behalf of the Company Stockholders and shall be finalSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, binding and conclusive upon any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 14.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will wire $150,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gemini Therapeutics, Inc. /DE)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by (a) By virtue of the approval and adoption of this Agreement or other appointment authorization documentation by the requisite consent of the Company Stockholders, each of the Company Stockholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware Law or California Lawthe applicable laws of the State of California) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet Xxxxxx X. Xxxxx as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, to authorize offset of payment to any Indemnified Party from the Holdback Shares Earnout Amount in satisfaction of claims by any Indemnified PersonParty, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Person Party against any Company Stockholder or by any such Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time Pro Rata Portions of the Earnout Amount; provided, however, that the Stockholders’ Representative may not be removed unless holders of a two-thirds interest of the Earnout Amount agree to timesuch removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderEarnout Amount. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his its services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
Appears in 1 contract
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by By virtue of the approval authorization and adoption consent of this Agreement the Stockholders holding 75% or other appointment authorization documentation more of the total issued share capital of the Company (other than such Company the “Selling Stockholders”) and the drag along notices dated July 5, if any2019, who sent on behalf of the Selling Stockholders to the remaining stockholders of the Company, the Stockholders have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet irrevocably nominated, constituted and appointed Pelham Limited, a Hong Kong company, as its the agent and attorney-in-fact for each Stockholder, (the “Stockholders’ Representative ”i) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communicationscommunications to the Purchaser for any purpose under this Agreement and the Additional Agreements, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object (ii) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims under Section 10.1 or other disputes arising under or related to this Agreement, assert, negotiate, (iii) to enter into settlements and compromises ofdeliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to the Stockholders of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of the Stockholders in accordance with the provisions of the Agreement, the securities described herein and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Share Exchange and (vi) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding time upon no less than twenty (20) days’ prior written notice to the foregoingPurchaser, provided, however, that the Stockholders’ Representative may resign not be removed unless holders of at any time by providing written notice least 51% of intent to resign all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the Company transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest at least 51% of all of the Holdback SharesCompany Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. If Any removal or change of the Stockholders’ Representative shall not be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor effective until written notice is delivered to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderPurchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ RepresentativeRepresentative shall, including an amendment, extension or waiver of this Agreement pursuant to its authority for all purposes hereunder, shall constitute a decision decision, act, consent or instruction of all of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Notwithstanding anything in this Agreement to the contrary, the Stockholders’ Representative shall have no obligation or authority with respect to any indemnification claims against a Stockholder made by the Purchaser under Section 10.2.
Appears in 1 contract
Samples: Share Exchange Agreement (8i Enterprises Acquisition Corp.)
Stockholders’ Representative. Section 8.6.1 (a) Each Company Stockholder by virtue of the approval and adoption Stockholders designates Sxxxx Xxx as such Indemnifying Securityholder’s representative (the “Stockholders’ Representative”) for purposes of this Agreement or other appointment authorization documentation (other than such Company Agreement, and Sxxxx Xxx agrees to act as the Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder ’ Representative as set forth herein. Each of the Stockholders and each of their respective successors shall be deemed to have agreed to appoint CommerceNet as its agent approved, and attorney-in-fact (shall be bound by, any and all actions taken by the “Stockholders’ Representative ”) for and on their behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person under or otherwise relating to this Agreement or and the transactions contemplated hereby hereunder as if such actions were expressly ratified and to take all other actions confirmed by each of them. In the event that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing is unable or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees unwilling to receive correspondence from the Stockholders’ Representativeserve or shall resign, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the successor Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor selected by the holders of a majority in interest of the Holdback SharesShares outstanding immediately prior to the Closing. If A Stockholders’ Representative may not resign, except upon thirty (30) days’ prior written notice to the Buyer. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of death of a Stockholders’ Representative, the executor or other Representative of such Stockholders’ Representative’s estate shall be deemed to be the successor), and the Buyer shall be notified promptly of such appointment by such successor Stockholders’ Representative. No resignation, nor any other replacement, of any Stockholders’ Representative is effective against the Buyer until selection of a successor and prior written notice to the Buyer of such selection. Each successor Stockholders’ Representative shall be removedhave all of the power, resign or otherwise be unable to fulfill his responsibilities hereunderrights, authority and privileges hereby conferred upon the Company Stockholders shall appoint a successor to the original Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Defense & National Security Systems, Inc.)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by By virtue of the approval and adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Mergers and the consummation of the Mergers or other appointment authorization documentation (other than such Company Stockholdersparticipating in the Mergers and receiving the benefits thereof, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any including the right to receive the consideration payable hereunder in connection with the Mergers, each Company Securityholder shall be deemed to have agreed to appoint CommerceNet appointed the designation of, and hereby designates, Hunniwell Xxxxxx I, LLC as its agent and attorney-in-fact (the “Stockholders’ Representative ”for all purposes in connection with this Agreement and any agreement ancillary hereto, including (a) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset communications to Parent for any purpose under this Agreement and the Additional Agreements; (b) to act on behalf of Company Securityholders in accordance with the provisions of the Holdback Shares in satisfaction of claims by any Indemnified PersonAgreement, object to such payments, agree to, negotiate, enter into settlements the securities described herein and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Mergers; and (c) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Each Company Stockholder agrees to receive correspondence from the The Stockholders’ Representative, including in electronic formRepresentative may resign at any time. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares Securityholders from time to time. Notwithstanding the foregoingtime upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may resign at any time by providing written notice not be removed unless holders of intent to resign a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Company First Effective Time agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign Company Securities (on an as converted or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor exercised basis) outstanding immediately prior to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderFirst Effective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, and except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not receive be liable for any compensation for his servicesaction or omission pursuant to the advice of counsel. A decisionThe Company Securityholders will indemnify, actdefend and hold harmless the Stockholders’ Representative from and against any and all losses, consent liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or instruction in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall not include costs (other than third party expenses) incurred by the Stockholders’ Representative in the ordinary course of business of the Stockholders’ Representative under the engagement letter entered into by the Stockholders’ Representative, the Company, and certain of the Company Securityholders; and provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, including an amendmentthe Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, extension any such Representative Losses may be recovered by the Stockholders’ Representative from the funds in the Expense Fund; provided, that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or waiver of this Agreement pursuant incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its authority hereunder, shall constitute a decision own funds on behalf of the Company Stockholders and shall be finalSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, binding and conclusive upon any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 11.16. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Altitude Acquisition Corp.)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval Stockholders and adoption the Company designates Xxxxx Xxxxxxxxx (the chief financial officer of Xxxxxxxxx) as its representative (the "Stockholders' Representative") for all purposes under this Agreement Agreement, including receipt of disclosures, granting and/or executing consents or other appointment authorization documentation (other than waivers, receiving notices and agreeing to and executing amendments and/or modifications to this Agreement. Any such Company receipt, grant, agreement and/or execution by the Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder ' Representative shall be deemed to have agreed to appoint CommerceNet valid and binding on the Company and each of the Stockholders. The designation by the Company and the Stockholders of such representative may not be revoked without the written consent of Buyer. Each of the Stockholders also appoints the Stockholders' Representative as its agent such Stockholder's custodian and attorney-in-fact (the “Stockholders’ Representative ”) for and on behalf of the Company Stockholders to act for such Stockholder in connection with the Company Stockholders with regard to matters pertaining to Article 8 Escrow Agreement arrangements as contemplated by the terms hereof and Article 9thereof, give and receive notices and communications, authorize offset the Stockholders' Representative hereby accepts such appointment. It is agreed by each of the Holdback Shares Stockholders that the Escrow Fund to be held in satisfaction custody by the Escrow Agent under the Escrow Agreement will be subject to the interests of claims the Buyer and the Stockholders' Representative as attorney-in-fact; that the arrangements made by such Stockholder hereunder and thereunder are irrevocable; and that the obligations of such Stockholder hereunder shall not be terminated by any Indemnified Personacts of such Stockholder, object to or by operation of law, whether by the death or incapacity of such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, Stockholder or any other claim by any Indemnified Person relating party to this Agreement or the transactions contemplated hereby occurrence of any other event; and if any such death, incapacity or any other such event shall occur after the execution of this Agreement and before the Closing Date or the delivery of all or any portion of the Escrow Fund to Buyer, the Stockholders' Representative is nevertheless authorized and directed to hold and dispose of the Escrow Fund (and to take instruct the Escrow Agent to hold and dispose of the Escrow Fund) in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Stockholder's Representative shall have received notice of such death, incapacity or other event. All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Stockholders under this Agreement, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ , and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders' Representative shall incur no liability to the Stockholders with respect to any action taken or suffered by the Stockholders' Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the accomplishment indemnification obligations of the foregoing or (ii) specifically mandated by the terms of Stockholders under this Agreement. Each Company Stockholder agrees , including the defense or settlement of any claims and the making of payments with respect thereto, except to receive correspondence the extent resulting from the Stockholders’ ' Representative's own willful misconduct or negligence. The Stockholders' Representative may, including in electronic form. Such agency may be changed all questions arising under this Agreement or the Escrow Agreement, rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ ' Representative shall not be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor liable to the Stockholders’ . The Stockholders acknowledge and agree that the Stockholders' Representative may incur costs and expenses on behalf of the Stockholders in his capacity as Stockholders' Representative ("Representative Expenses"). Each of the Stockholders agrees to pay the Stockholders' Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as promptly upon demand by the Stockholders’ ' Representative hereunder. No bond shall be required therefor, such Stockholder's Proportionate Share of the Stockholders’ Representative, and the Stockholders’ any Representative shall not receive any compensation for his services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company StockholdersExpenses.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunglass Hut International Inc)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of (a) Xxxxx Xxxxxxxxx is hereby appointed as the approval Stockholders’ true and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholderslawful representative, if anyproxy, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet as its agent and attorney-in-fact (the “Stockholders’ Representative Representative”) for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Company Stockholders in connection with or relating to act for the Company Stockholders with regard Transaction Documents and the Contemplated Transactions, including, without limitation, to matters pertaining to Article 8 and Article 9, give and receive notices and communications, to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, to receive and deliver the amount comprising the Final Closing Merger Consideration, to authorize offset delivery of Promissory Note payments, to object to or accept any claims against or on behalf of the Holdback Shares in satisfaction of claims by any Indemnified PersonPrincipal Stockholders, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of arbitrators with respect toto such amounts or claims, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the judgment sole opinion of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares at any time and from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice the action of intent to resign to Stockholders holding more than fifty percent (50%) of the Company Stockholdersissued and outstanding Shares that approved the Merger, which resignation and shall be become effective upon the earlier of (A) not less than thirty (30) calendar days following delivery of such prior written notice or (B) to ATS. Except as provided in the appointment of a successor by foregoing sentence, in the holders of a majority in interest of event that for any reason the Holdback Shares. If the most recent Stockholders’ Representative shall no longer be removedserving in such capacity, resign including, without limitation, as a result of the death, resignation, or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required incapacity of the Stockholders’ Representative, either (i) the outgoing Stockholders’ Representative shall appoint a successor Stockholders’ Representative or (ii) if the outgoing Stockholders’ Representative is unable, unwilling or otherwise fails to appoint a successor Stockholder Representative, then Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger shall designate another Person to act as Stockholders’ Representative, such that, at all times, to the extent practicable, there will be a Stockholders’ Representative with the authority provided hereunder. Any change in the Stockholders’ Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to ATS. The Stockholders’ Representative shall not receive any compensation for his or her services. A decisionNotices, actdeliveries or communications to or from the Stockholders’ Representative by or to any of the parties to the Transaction Documents shall constitute notices, consent deliveries or instruction communications to or from each of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Ats Corp)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by By virtue of the approval and adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger and the consummation of the Merger or other appointment authorization documentation (other than such Company Stockholdersparticipating in the Merger and receiving the benefits thereof, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any including the right to receive the consideration payable hereunder in connection with the Merger, each Company Securityholder shall be deemed to have agreed to appoint CommerceNet appointed the designation of, and hereby designates, Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Stockholders’ Representative ”for all purposes in connection with this Agreement and any agreement ancillary hereto, including (a) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of communications to Parent for any purpose under this Agreement and the Holdback Shares in satisfaction of claims by any Indemnified Person, object Additional Agreements; (b) to such payments, agree to, negotiate, enter into settlements and compromises of, of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claims (including Third-Party Claims) under Section 11.1 or, assertfollowing the Closing, negotiate, other disputes arising under or related to this Agreement; (c) to enter into settlements and compromises ofdeliver the Escrow Agreement on behalf of each of the Company Securityholders; (d) to authorize or object to delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent in accordance with the provisions of the Escrow Agreement; (e) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this document or instrument executed in connection with the Agreement or and the transactions contemplated hereby Merger; and (f) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Each Company Stockholder agrees to receive correspondence from the The Stockholders’ Representative, including in electronic formRepresentative may resign at any time. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares Securityholders from time to time. Notwithstanding the foregoingtime upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may resign at any time by providing written notice not be removed unless holders of intent to resign a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Company Effective Time agree to such removal. Any vacancy in the position of Stockholders, which resignation shall ’ Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign Company Securities (on an as converted or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor exercised basis) outstanding immediately prior to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunderEffective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, and except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not receive be liable for any compensation for his servicesaction or omission pursuant to the advice of counsel. A decisionThe Company Securityholders will indemnify, actdefend and hold harmless the Stockholders’ Representative from and against any and all losses, consent liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or instruction in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, including an amendmentthe Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, extension any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or waiver of this Agreement pursuant incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its authority hereunder, shall constitute a decision own funds on behalf of the Company Stockholders and shall be finalSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, binding and conclusive upon any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 14.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will wire $150,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FS Development Corp.)
Stockholders’ Representative. Section 8.6.1 Each Company (a) By executing the Stockholder by virtue of Support Agreements, each Stockholder irrevocably constitutes and appoints Xxxxxx Xxxxxxx as the approval true and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint CommerceNet as its lawful agent and attorney-in-fact (hereinafter referred to as the “"STOCKHOLDERS' REPRESENTATIVE") of each Stockholder, with full powers of substitution, to act in the name, place and stead of each Stockholder with respect to the Merger in accordance with the provisions of this Agreement and the Escrow Agreement, and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Stockholders’ ' Representative ”) for and on behalf may deem necessary or appropriate in connection with any of the Company Stockholders transactions contemplated under this Agreement or the Escrow Agreement, to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, to authorize offset delivery to Parent of the Holdback Escrow Shares or other property from the Escrow Account in satisfaction of claims by any Indemnified PersonParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby such claims and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoingtime upon not less than thirty days prior written notice to Parent; PROVIDED, HOWEVER, that the Stockholders’ ' Representative may resign at any time by providing written notice not be removed unless holders of intent a two-thirds interest in the Escrow Account agree to resign such removal and to the Company identity of the substituted stockholders' representative. Any vacancy in the position of Stockholders, which resignation shall ' Representative may be effective upon the earlier filled by approval of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If Escrow Account.. The Stockholders agree that any such action, if material to the rights and obligations of the Stockholders in the reasonable judgment of the Stockholders’ ' Representative, shall be taken in the same manner with respect to all Stockholders, unless otherwise agreed by each Stockholders. The appointment of the Stockholders' Representative shall be removeddeemed coupled with an interest and shall be irrevocable, resign or otherwise be unable to fulfill his responsibilities hereunderand Parent and any other person may conclusively and absolutely rely, the Company Stockholders shall appoint a successor to without inquiry, upon any actions of the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ ' Representative as the Stockholders’ Representative hereunder. No bond shall be required act of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of Stockholders in all matters referred to in this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company StockholdersAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ticketmaster Online Citysearch Inc)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholdersa) Brazos GP Partners, if any, who have perfected appraisal rights under Delaware Law or California Law) or by accepting any consideration payable hereunder LLC shall be deemed constituted and appointed as agent (the foregoing person and any other person duly acting in such capacity as authorized hereunder from time to have agreed to appoint CommerceNet as its agent and attorney-in-fact (time, the “Stockholders’ Representative Representative”) for and on behalf of the Company Stockholders each Former Stakeholder to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiatenegotiate and enter into, enter into settlements on behalf of the Former Stakeholders, amendments, consents and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to waivers under this Agreement or pursuant to the transactions contemplated hereby terms set forth herein, to make and receive payments on behalf of the Former Stakeholders pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the determination of the Estimated Closing Statement, the Proposed Closing Statement and the Final Closing Statement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to receive correspondence from the Stockholders’ Representative, including in electronic formforegoing. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing vote or written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor consent by the holders of a majority in interest of the Holdback SharesCompany Capital Stock on an as-converted basis as of the Closing Date, voting in the same manner as would have been voted in accordance with the Organizational Documents of the Company as in effect immediately prior to the Closing Date (the “Majority Stockholders”), from time to time upon not less than ten (10) days’ prior written notice to Parent. If at any time the Stockholders’ Representative resigns, dies or becomes incapable of acting, the Majority Stockholders shall immediately choose another Stockholder to act as the Stockholders’ Representative under this Agreement. No such resignation shall be effective until a new Stockholders’ Representative shall be removed, resign or otherwise be unable appointed and have confirmed his acceptance of such appointment in writing to fulfill his responsibilities hereunder, the Company Stockholders shall appoint Parent. The Former Stakeholder Indemnified Persons may not make a successor claim for indemnity against Parent pursuant to this Agreement except through the Stockholders’ Representative, and who shall immediately thereafter notify Parent make such a claim only upon the identity written direction of such successorthe Majority Stockholders. Any such successor shall succeed the former The Stockholders’ Representative as may enforce, prosecute and settle any indemnification related claim without directions from the Former Stakeholders or the Former Stakeholder Indemnified Persons, and all acts and decisions of the Stockholders’ Representative hereunderin connection with such matters shall be binding on all the Former Stakeholders and Former Stakeholder Indemnified Persons. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any no compensation for his services. A decisionservices provided hereunder, actbut shall receive reimbursement from, consent and be indemnified severally by, the Former Stakeholders, in proportion to the aggregate amount of Merger Consideration received by such Former Stakeholders, for any and all Damages or instruction of expenses incurred by the Stockholders’ Representative, including an amendment, extension Representative in the performance or waiver discharge of this Agreement its duties pursuant to this Section 10.13, and, in addition to the foregoing, the Stockholders’ Representative shall be entitled to offset the amount of any such Damages and expenses from any amounts released from the Escrow Fund and the Reserve Account upon its authority hereunder, release to the Former Stakeholders prior to the distribution of such funds to the Former Stakeholders in accordance with the terms hereof. Notices or communications to or from the Stockholders’ Representative shall constitute a decision notice to or from each of the Company Stockholders and shall be final, binding and conclusive upon the Company StockholdersFormer Stakeholders.
Appears in 1 contract
Samples: Escrow Agreement (Amsurg Corp)
