Shareholders' Agent (a) At the Closing, VenGrowth Private Equity Partners Inc. shall be constituted and appointed as the Shareholders’ Agent. For purposes of this Agreement, the term “Shareholders’ Agent” shall mean the agent for and on behalf of the Closing Company Shareholders to: (i) give and receive notices and communications to or from Acquiror (on behalf of itself of any other Indemnified Person) relating to this Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by such shareholders individually); (ii) enter into this Agreement, the General Escrow Agreement and the Separate Escrow Agreement and authorize deliveries to the Indemnified Persons of cash from the Escrow Fund in satisfaction of claims asserted by Acquiror (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (iii) object to such claims pursuant to Section 9.6, (iv) consent or agree to, negotiate, enter into, or, if applicable, prosecute or defend, settlements and compromises of, and comply with orders of courts with respect to, such claims; (v) provide any consents hereunder, including with respect to any proposed settlement of any claims or agree to any amendment to this Agreement, and (vi) take all actions necessary or appropriate in the judgment of the Shareholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Person serving as the Shareholders’ Agent may be replaced from time to time by the holders of a majority in interest of the cash then on deposit in the Escrow Fund upon not less than ten days’ prior written notice to Acquiror and the Person serving as the Shareholders’ Agent; provided, however, that any person serving as the Shareholders’ Agent shall not be an employee of Acquiror or any subsidiary thereof. The Shareholders’ Agent shall have the right to resign upon giving ten days’ prior written notice to Acquiror, and a new Person shall be appointed by the holders of a majority in interest of the cash then on deposit in the Escrow Fund, subject to the limitation hereinabove, such appointment to be effective the later of (A) immediately upon resignation of the prior Shareholders’ Agent or (B) the date the Shareholders’ Agent is appointed by the holders of a majority in interest of the cash then on deposit in the Escrow Fund. No bond shall be required of the Shareholders’ Agent, and the Shareholders’ Agent shall receive no compensation for his services.
Shareholders’ Representative (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Stockholders’ Representative (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
SELLING SHAREHOLDERS The common stock being offered by the selling shareholders are those previously issued to the selling shareholders, and those issuable to the selling shareholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of common stock and warrants, see "Private Placement of Common Shares and Warrants" above. We are registering the shares of common stock in order to permit the selling shareholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock and the warrants, the selling shareholders have not had any material relationship with us within the past three years. The table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling shareholders. The second column lists the number of shares of common stock beneficially owned by each selling shareholder, based on its ownership of the shares of common stock and warrants, as of ________, 2018, assuming exercise of the warrants held by the selling shareholders on that date, without regard to any limitations on exercises. The third column lists the shares of common stock being offered by this prospectus by the selling shareholders. In accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale of the sum of (i) the number of shares of common stock issued to the selling shareholders in the __________________ and (ii) the maximum number of shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling shareholders pursuant to this prospectus. Under the terms of the warrants, a selling shareholder may not exercise the warrants to the extent such exercise would cause such selling shareholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed [4.99]% of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling shareholders may sell all, some or none of their shares in this offering. See "Plan of Distribution." The undersigned beneficial owner of common stock (the “Registrable Securities”) of TheMaven, Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
Directors, Trustees and Shareholders and Massachusetts Business Trust It is understood and is expressly stipulated that neither the holders of shares in the Fund nor any Directors or Trustees of the Fund shall be personally liable hereunder. With respect to any Fund which is a party to this Agreement and which is organized as a Massachusetts business trust (“Trust”), the term “Fund” means and refers to the trust established by its applicable trust agreement (Declaration of Trust) as the same may be amended from time to time. It is expressly agreed that the obligations of any such Trust hereunder shall not be binding upon any of the trustees, shareholders, nominees, officers, agents or employees of the Trust, personally, but bind only the trust property of the Trust, as provided in the Declaration of Trust of the Trust. The execution and delivery of this Agreement has been authorized by the trustees and signed by an authorized officer of the Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them, but shall bind only the trust property of the Trust as provided in its Declaration of Trust.
