The Shareholders Representative. (a) The Shareholders hereby authorize, direct and appoint Xxxxx Xxxxxxxx to act as sole and exclusive agent, attorney-in-fact and representative of the Shareholders, with full power of substitution with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Paid Amount to or for the benefit of the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Articles XI and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacity, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' Representative on behalf of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable for allocation of particular deliveries and payments among the Shareholders. (b) The appointment of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard to this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement. (c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket expenses incurred by the Shareholders' Representative in his capacity as such. (d) Each Shareholder hereby waives all potential conflicts of interest arising out of the Shareholders' Representative's activities or authority as the Shareholders' Representative and his relationships with PIC or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliates. (e) The Shareholders' Representative may resign at any time by giving written notice of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, the Shareholders' Representative may be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person. (f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholders.
Appears in 1 contract
Samples: Stock Purchase Agreement (United National Group LTD)
The Shareholders Representative. (a) The By the approval of the Merger at a special meeting of Shareholders hereby authorizeor by written consent of the Shareholders, direct each Shareholder, other than Dissenting Shareholders, will irrevocably authorize and appoint Xxxxx Xxxxxxxx Xxxxxx X. Xxxxxx as the Shareholders’ Representative, to act serve as sole his, her or its representative and exclusive agent, true and lawful attorney-in-fact and representative of the Shareholdersagent to act in his, with full power of substitution her or its name, place and stead with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions . Without limiting the generality of the Paid Amount to or for the benefit of foregoing, the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' ’ Representative shall reasonably deem necessary or prudent be fully and irrevocably authorized and empowered to act, in connection accordance with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Articles XI and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authorityEscrow Agreement, and any decision or determination made by the Shareholders' Representative consistent herewiththis Agreement, shall be absolutely for and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacity, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' Representative on behalf of the Shareholders (other than Dissenting Shareholders) as of the Effective Time as agent and any delivery or payment so made representative for all such Shareholders (other than Dissenting Shareholders) to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to the Shareholders' ’ Representative by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Shareholders’ Representative shall constitute full performance of the obligations hereunder of Parent not have any duties or Buyer to responsibilities, except those expressly set forth herein. The Shareholders shall be bound by all actions taken and documents executed by the Shareholders’ Representative in accordance with this Section 2.5. Parent and Buyer In performing the functions specified in this Agreement, the Shareholders’ Representative shall not be liable for allocation to the Shareholders in the absence of particular deliveries and payments among gross negligence or willful misconduct on the part of the Shareholders’ Representative. The Shareholders’ Representative shall be indemnified and held harmless by the Shareholders from and against any loss, liability, or expense incurred without gross negligence, fraud or willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his or her duties hereunder. Such indemnity shall be made, first, to the extent possible out of funds that otherwise are to be distributed from the Escrow Account to the Shareholders, if any, and, second, directly from the Shareholders in accordance with each Shareholders’ pro-rata ownership interest in the Company as set forth in the Merger Consideration Certificate. Any out-of-pocket costs and expenses incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of this Agreement (including the hiring of legal counsel and the incurring of reasonable legal fees and costs (“Representative Expenses”) shall be the responsibility of Shareholders. Upon final distribution of the Escrow Account, the Escrow Agent shall pay to the Shareholders’ Representative, out of the aggregate portion of funds in the Escrow Account that otherwise are to be distributed to the Shareholders, if any, pursuant to this Agreement and the Escrow Agreement, any unpaid Representative Expenses.
(b) The appointment Shareholders’ Representative may execute any of his duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Notwithstanding anything in this Agreement to the contrary, in no event shall the Shareholders' ’ Representative be authorized or permitted to enter into or agree to any settlement to the extent such settlement provides for the admission of any wrongdoing by, or is otherwise harmful to, a Shareholder or any affiliate thereof, without the prior written consent of such Shareholder.
(c) The Shareholders’ Representative is deemed to be appointed as each Shareholder's ’s attorney-in-fact revokes any power fact, with full authority in the place and stead of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard and in the name of such Shareholder, from time to time in the Shareholders’ Representative’s discretion to take any action and to execute any document or instrument that the Shareholders’ Representative may deem necessary or advisable to accomplish the purposes of this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement including without limitation:
(i) will not be terminated by operation of lawto execute, deathgive and receive any notices, mental agreements, certificates, closing certificates or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding documents in connection therewith, or in the case of a trust, with transactions contemplated by the death of any trustee or trustees or the termination of such trust, or any other event, and this Agreement;
(ii) to negotiate, defend, settle or pay any claims for indemnification under this Agreement; provided, however, that in no event shall survive the delivery of an assignment by Shareholders’ Representative settle or pay any Shareholder claims for Losses (as defined in Section 9.1) in excess of the whole limitations set forth in Section 9.5; provided, further, that in no event shall the Shareholders’ Representative settle or pay any fraction claims for Losses as a result of its interest a Shareholder’s breach of any representation or warranty contained in the Letter of Transmittal without the prior written consent of such Shareholder; and
(iii) to take any payment due other actions deemed necessary or advisable by the Shareholders’ Representative in order to it under carry out the purposes of this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket expenses incurred by the Shareholders' Representative in his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts In the event of interest arising out the death, incapacity or resignation of the Shareholders' ’ Representative's activities or authority , the Shareholders (by a written approval of Shareholders that held a majority of the issued and outstanding Company Capital Stock (on a fully diluted, as converted basis) as of the Closing Date) shall promptly appoint a successor Shareholders' ’ Representative to act in accordance with this Section 2.5 and his relationships with PIC or any shall provide written notice of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliatessuch appointment to Parent.
(e) The Shareholders' ’ Representative may resign at any time by giving written notice is an intended third-party beneficiary of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, the Shareholders' Representative may be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person.
(f) Parent shall pay to the Shareholders’ Representative $20,000 (the “Indemnification Expense Cash”) from the Cash Merger Consideration otherwise payable to the holders of Company Capital Stock. The provisions Indemnification Expense Cash shall be held by the Shareholders’ Representative in escrow as a source of this funds for the payment of expenses, including legal and out-of-pocket expenses, incurred in connection with the prosecution, defense, settlement or negotiation of any claim for indemnification hereunder, or any disputes relating thereto, brought by or against the Shareholders’ Representative in accordance with Article XIII shall in no way impose any obligations on Parent or BuyerIX. In particular, notwithstanding the event any notice received by Parent or Buyer to funds remain from the contrary (except any notice Indemnification Expense Cash at the end of the appointment period ending on the eighteen (18) month anniversary of a successor the Closing Date, the Shareholders' ’ Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability disburse such amounts from escrow to the Shareholders with respect to, actions, decisions and determinations pro rata based on the aggregate amount of the Shareholders' Representative and (ii) Cash Merger Consideration received by each Shareholder, unless there are unresolved claims for indemnification outstanding on such date, in which case appropriate funds shall be entitled held until such claims are resolved or finally determined; and, further, to assume that all actions, decisions and determinations the extent any funds remain from the Indemnification Expense Cash they shall be paid to the Shareholders pro rata based on the aggregate amount of the Shareholders' Representative are fully authorized Cash Merger Consideration received by all of the Shareholderseach Shareholder.
Appears in 1 contract
Samples: Merger Agreement (Ebix Inc)
The Shareholders Representative. Subject to this Section 11.4, BOCF, LLC will act as the “Shareholders Representative” under this Agreement. The Shareholders Representative has the full power and authority on behalf of the Shareholders to take any and all actions and make any and all determinations in respect of this Agreement and the Transactions. Without limiting the generality of the foregoing, the Shareholders Representative is authorized to (a) The Shareholders hereby authorizenegotiate, direct execute, and appoint Xxxxx Xxxxxxxx deliver all amendments, modifications, and waivers to act this Agreement or any other agreement, document, or instrument contemplated by this Agreement, (b) endorse and deliver any certificates or instruments representing any Shareholder’s Shares and execute such further instruments of assignment as sole Purchaser shall reasonably request and exclusive agent, attorney-in-fact and representative (c) take all actions on behalf of the Shareholders, Shareholders in connection with full power of substitution any claims or disputes with respect to all matters under this Agreement or the Transactions (other than any claims against a Shareholder), to initiate, prosecute, defend, and/or settle such claims and disputes. All decisions and actions by the Shareholders Representative (to the extent authorized by this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Paid Amount to or for the benefit of ) will be binding upon all the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Articles XI and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacity, and no Shareholder shall will have the right to object, dissent, protest protest, or otherwise contest the same. Any action required to be taken by the The Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be is entitled to take any engage counsel and other advisors, and the reasonable fees and expenses of such actioncounsel and advisors may be paid from the Expense Fund. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' The Shareholders Representative on behalf of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable to the Shareholders for allocation any action taken by it pursuant to this Agreement, and the Shareholders shall indemnify and hold the Shareholders Representative harmless from any Losses arising out of particular deliveries its serving as the Shareholders Representative hereunder, including legal fees and payments among other expenses that the Shareholders Representative incurs in the course of its services, except in each case if and to the extent the Shareholders Representative has engaged in bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Shareholders Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Shareholders hereunder solely on account of serving as the Shareholders Representative, and Purchaser and the Company and its Subsidiary agree that they will not look to the underlying assets of the Shareholders Representative for the satisfaction of any obligations of the Company and its Subsidiary or the Shareholders.
. Any Person serving as the Shareholders Representative hereunder may resign as the Shareholders Representative upon at least ten (b10) days prior written notice to the Shareholders and Purchaser. The appointment Shareholders (by a written consent executed by a majority of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power , based on the number of attorney heretofore granted that authorized any other voting Equity Interests owned by them immediately prior to the Closing) may remove the Shareholders Representative, and in such event shall appoint, and may remove, a replacement Person or Persons to represent such Shareholder with regard to this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Shareholders Representative hereunder, who will be considered a “Shareholders Representative” for all purposes of this Agreement. All rights of a Shareholders Representative to indemnification hereunder shall survive such Shareholders Representative’s death, subject resignation, or removal. The Shareholders shall reimburse, to the provisions hereofextent of their Pro-Rata Percentages, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Shareholders' Shareholders Representative in performing all of his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts of interest arising out duties and obligations under this Agreement to the extent not covered through disbursement from the Expense Fund. A decision, act, consent or instruction of the Shareholders' Representative's activities Shareholders Representative will constitute a decision of all the Shareholders and will be final, binding and conclusive upon each such Shareholder, and Purchaser (and the Company and its Subsidiary following the Closing) may conclusively, and without independent investigation or authority inquiry, rely upon any such decision, act, consent or instruction of the Shareholders Representative as being a decision, act, consent or instruction of each such Shareholder, and none of Purchaser (or the Shareholders' Representative Company and his relationships with PIC its Subsidiary following the Closing) or any of its Subsidiaries Representatives shall have any liability or affiliates (whether before or after obligation to any Person in respect thereof, including with respect to the Closing), whether Pro-Rata Percentage. The Shareholders Representative shall use reasonable efforts to keep the Shareholders reasonably informed with respect to actions of the Shareholders Representative. The Shareholders Representative will maintain the Expense Fund separate from its corporate funds and will not voluntarily make these funds available to creditors in the event of bankruptcy. As soon as an employee, consultant, agent, director, officer, shareholder or other representative practicable following the completion of PIC or any of its affiliates.
(e) The Shareholders' Representative may resign the Shareholders Representative’s responsibilities and at any time promptly following a request by giving written notice of resignationa Shareholder, at least sixty (60) days prior the Shareholders Representative will deliver to the effectiveness Shareholders account balance information about the Expense Fund and a reconciliation of such resignation, to Parentany amounts disbursed from the Expense Fund. For Tax purposes, the Shareholders, the Shareholders' Representative may Expense Fund will be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held treated as having been received and voluntarily set aside by the Shareholders on at the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case time of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any PersonClosing.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholders.
Appears in 1 contract
Samples: Contribution Agreement (Proficient Auto Logistics, Inc)
The Shareholders Representative. (a) The By the approval of the Merger at a special meeting of Shareholders hereby authorizeor by written consent of the Shareholders, direct each Shareholder, other than Dissenting Shareholders, will irrevocably authorize and appoint Xxxxx Xxxxxxxx Xxxxxx X. Xxxx as the Shareholders Representative, to act serve as sole his, her or its representative and exclusive agent, true and lawful attorney-in-fact and representative of the Shareholdersagent to act in his, with full power of substitution her or its name, place and stead with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions . Without limiting the generality of the Paid Amount to or for foregoing, the benefit of the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Shareholders Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Articles XI and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely fully and irrevocably binding on each Shareholder as if such Shareholder personally had taken such actionauthorized and empowered to act, exercised such rightsin accordance with this Agreement, power or authority or made such decision or determination in such Shareholder's individual capacity, for and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' Representative on behalf of the Shareholders as of the Effective Time as agent and any delivery or payment so made representative for all such Shareholders to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to the Shareholders' Shareholders Representative by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Shareholders Representative shall constitute full performance of not have any duties or responsibilities, except those expressly set forth herein. The Shareholders shall be bound by all actions taken and documents executed by the obligations hereunder of Parent or Buyer to Shareholders Representative in accordance with this Section 2.5. In performing the Shareholders. Parent and Buyer functions specified in this Agreement, the Shareholders Representative shall not be liable for allocation to the Shareholders in the absence of particular deliveries gross negligence or willful misconduct on the part of the Shareholders Representative. The Shareholders Representative shall be indemnified and payments among held harmless by the Shareholders from and against any loss, liability, or expense incurred without gross negligence, fraud or willful misconduct on the part of the Shareholders Representative and arising out of or in connection with the acceptance or administration of his or her duties hereunder. Such indemnity shall be made, first, to the extent possible out of funds that otherwise are to be distributed from the Escrow Fund to the Shareholders, if any, and, second, directly from the Shareholders in accordance with each Shareholders' pro-rata ownership interest in the Company as set forth in the Merger Consideration Certificate. Any out-of-pocket costs and expenses incurred by the Shareholders Representative in connection with actions taken by the Shareholders Representative pursuant to the terms of this Agreement (including the hiring of legal counsel and the incurring of reasonable legal fees and costs ("Representative Expenses") shall be the responsibility of Shareholders.
(b) The appointment Shareholders Representative may execute any of his duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Notwithstanding anything in this Agreement to the Shareholders' contrary, in no event shall the Shareholders Representative be authorized or permitted to enter into or agree to any settlement to the extent such settlement provides for the admission of any wrongdoing by, or is otherwise harmful to, a Shareholder or any affiliate thereof, without the prior written consent of such Shareholder.
(c) The Shareholders Representative is deemed to be appointed as each Shareholder's attorney-in-fact revokes any power fact, with full authority in the place and stead of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard and in the name of such Shareholder, from time to time in the Shareholders Representative's discretion to take any action and to execute any document or instrument that the Shareholders Representative may deem necessary or advisable to accomplish the purposes of this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement including without limitation:
(i) will not be terminated by operation of lawto execute, deathgive and receive any notices, mental agreements, certificates, closing certificates or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding documents in connection therewith, or in the case of a trust, with transactions contemplated by the death of any trustee or trustees or the termination of such trust, or any other event, and this Agreement;
(ii) to negotiate, defend, settle or pay any claims for indemnification under this Agreement; provided, however, that in no event shall survive the delivery of an assignment by Shareholders Representative settle or pay any Shareholder claims for Losses (as defined in Section 9.1) in excess of the whole limitations set forth in Section 9.5; provided, further, that in no event shall the Shareholders Representative settle or pay any fraction claims for Losses as a result of its interest a Shareholder's breach of any representation or warranty contained in the Letter of Transmittal without the prior written consent of such Shareholder; and
(iii) to take any payment due other actions deemed necessary or advisable by the Shareholders Representative in order to it under carry out the purposes of this Agreement.
(cd) Xxxxx Xxxxxxxx hereby accepts In the foregoing appointment and agrees to serve as event of the Shareholders' death, incapacity or resignation of the Shareholders Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders (by a written approval of reasonable out of pocket expenses incurred by the Shareholders' Representative in his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts of interest arising out Shareholders that held a majority of the Shareholders' Representative's activities or authority issued and outstanding Company Capital Stock (on a fully diluted, as converted basis) as of the Shareholders' Closing Date) shall promptly appoint a successor Shareholders Representative to act in accordance with this Section 2.5 and his relationships with PIC or any shall provide written notice of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliatessuch appointment to Parent.
(e) The Shareholders' Shareholders Representative may resign at any time by giving written notice is an intended third-party beneficiary of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, the Shareholders' Representative may be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Ebix Inc)
The Shareholders Representative. Subject to this Section 11.4, BOCF, LLC will act as the “Shareholders Representative” under this Agreement. The Shareholders Representative has the full power and authority on behalf of the Shareholders to take any and all actions and make any and all determinations in respect of this Agreement and the Transactions. Without limiting the generality of the foregoing, the Shareholders Representative is authorized to (a) The Shareholders hereby authorizenegotiate, direct execute, and appoint Xxxxx Xxxxxxxx deliver all amendments, modifications, and waivers to act this Agreement or any other agreement, document, or instrument contemplated by this Agreement, (b) endorse and deliver any certificates or instruments representing any Shareholder’s Shares and execute such further instruments of assignment as sole Purchaser shall reasonably request and exclusive agent, attorney-in-fact and representative (c) take all actions on behalf of the Shareholders, Shareholders in connection with full power of substitution any claims or disputes with respect to all matters under this Agreement or the Transactions (other than any claims against a Shareholder), to initiate, prosecute, defend, and/or settle such claims and disputes. All decisions and actions by the Shareholders Representative (to the extent authorized by this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Paid Amount to or for the benefit of ) will be binding upon all the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Articles XI and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacity, and no Shareholder shall will have the right to object, dissent, protest protest, or otherwise contest the same. Any action required to be taken by the The Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be is entitled to take any engage counsel and other advisors, and the reasonable fees and expenses of such actioncounsel and advisors may be paid from the Expense Fund. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' The Shareholders Representative on behalf of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable to the Shareholders for allocation any action taken by it pursuant to this Agreement, and the Shareholders shall indemnify and hold the Shareholders Representative harmless from any Losses arising out of particular deliveries its serving as the Shareholders Representative hereunder, including legal fees and payments among other expenses that the Shareholders Representative incurs in the course of its services, except in each case if and to the extent the Shareholders Representative has engaged in bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Shareholders Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Shareholders hereunder solely on account of serving as the Shareholders Representative, and Purchaser and the Company and its Subsidiary agree that they will not look to the underlying assets of the Shareholders Representative for the satisfaction of any obligations of the Company and its Subsidiary or the Shareholders.
. Any Person serving as the Shareholders Representative hereunder may resign as the Shareholders Representative upon at least ten (b10) days prior written notice to the Shareholders and Purchaser. The appointment Shareholders (by a written consent executed by a majority of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power , based on the number of attorney heretofore granted that authorized any other voting Equity Interests owned by them immediately prior to the Closing) may remove the Shareholders Representative, and in such event shall appoint, and may remove, a replacement Person or Persons to represent such Shareholder with regard to this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Shareholders Representative hereunder, who will be considered a “Shareholders Representative” for all purposes of this Agreement. All rights of a Shareholders Representative to indemnification hereunder shall survive such Shareholders Representative’s death, subject resignation, or removal. The Shareholders shall reimburse, to the provisions hereofextent of their Pro-Rata Percentages, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Shareholders' Shareholders Representative in performing all of his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts of interest arising out duties and obligations under this Agreement to the extent not covered through disbursement from the Expense Fund. A decision, act, consent or instruction of the Shareholders' Representative's activities Shareholders Representative will constitute a decision of all the Shareholders and will be final, binding and conclusive upon each such Shareholder, and Purchaser (and the Company and its Subsidiary following the Closing) may conclusively, and without independent investigation or authority inquiry, rely upon any such decision, act, consent or instruction of the Shareholders Representative as being a decision, act, consent or instruction of each such Shareholder, and none of Purchaser (or the Shareholders' Representative Company and his relationships with PIC its Subsidiary following the Closing) or any of its Subsidiaries Representatives shall have any liability or affiliates (whether before or after obligation to any Person in respect thereof, including with respect to the Closing), whether Pro-Rata Percentage and other calculations set forth in the Estimated Closing Statement. The Shareholders Representative shall use reasonable efforts to keep the Shareholders reasonably informed with respect to actions of the Shareholders Representative. The Shareholders Representative will maintain the Expense Fund separate from its corporate funds and will not voluntarily make these funds available to creditors in the event of bankruptcy. As soon as an employee, consultant, agent, director, officer, shareholder or other representative practicable following the completion of PIC or any of its affiliates.
(e) The Shareholders' Representative may resign the Shareholders Representative’s responsibilities and at any time promptly following a request by giving written notice of resignationa Shareholder, at least sixty (60) days prior the Shareholders Representative will deliver to the effectiveness Shareholders account balance information about the Expense Fund and a reconciliation of such resignation, to Parentany amounts disbursed from the Expense Fund. For Tax purposes, the Shareholders, the Shareholders' Representative may Expense Fund will be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held treated as having been received and voluntarily set aside by the Shareholders on at the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case time of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any PersonClosing.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholders.
Appears in 1 contract
Samples: Stock Purchase Agreement (Proficient Auto Logistics, Inc)
The Shareholders Representative. (a) The Shareholders By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Shareholder shall be deemed to, and shall have approved the designation of, and hereby authorizedesignates, direct and irrevocably appoint Xxxxx Xxxxxx X. Xxxxxxxx as the Shareholders’ Representative to act represent the Shareholders, their respective successors, heirs, representatives and assigns following the Closing Date as sole representative, agent and exclusive agent, attorney-in-fact in all matters relating to this Agreement and representative the transactions contemplated by this Agreement (and by its execution of this Agreement as the Shareholders’ Representative, with Xxxxxx X. Xxxxxxxx, hereby accepts such appointment). The Shareholders’ Representative shall have full power and authority to take any and all actions and make any and all decisions required or permitted to be taken or made by the Shareholders under this Agreement and the Escrow Agreements following the execution of substitution with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions including the exercise of the Paid Amount power to or for the benefit do any of the Shareholdersfollowing: (a) authorize the release or delivery to Purchaser of all or any portion of funds from the Escrow Accounts in satisfaction of indemnification Claims by Purchaser; (b) agree to, contesting negotiate, enter into settlements and settling compromises of, and comply with Orders of courts with respect to, such indemnification Claims; (c) litigate, arbitrate, resolve, settle or compromise any and all claims Claim for indemnification made pursuant to Articles XI Article 7 hereof; (d) receive and XII, resolving any other disputes hereunder, performing the duties expressly assigned distribute payments pursuant to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur such other expenses Escrow Agreement; (e) waive any provision of this Agreement or the Escrow Agreements, as the Shareholders' Representative ’ Representative, in his sole discretion, which shall reasonably be final, conclusive and binding, may deem necessary or prudent in connection advisable; (f) to investigate, defend, contest or litigate any Action initiated by any Person against the Shareholders’ Representative or funds from the Escrow Accounts; (g) negotiate, enter into settlements and compromises of, resolve and comply with the foregoing. The Shareholders' Representative shall have the sole Orders and exclusive right on behalf awards of any Shareholder to take any action arbitrators or provide any waiver, or receive any notice other third party intermediaries with respect to any claims for indemnification disputes arising under Articles XI and XII and to settle any claim this Agreement or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Escrow Agreements as the Shareholders' Representative consistent herewith’ Representative, shall be absolutely in his sole discretion, may deem necessary or desirable; and irrevocably binding on each Shareholder as if (h) to make, execute, acknowledge and deliver all such Shareholder personally had taken such actionother consents, exercised such rightscontracts, power or authority or made such decision or determination guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in such Shareholder's individual capacitygeneral, to do any and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative all things and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to all action that the Shareholders' Representative on behalf ’ Representative, in his sole discretion, may consider necessary or proper or convenient in connection with or to carry out or for the accomplishment of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable for allocation of particular deliveries and payments among the Shareholders.
(b) The appointment of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard to activities described in this Agreement, the PIC Shares Section 2.9 and the transactions contemplated by this Agreement or by the Escrow Agreements. All actions taken by the Shareholders’ Representative shall be binding upon each Shareholder and his or her successors, heirs, representatives and assigns as if expressly confirmed and ratified in writing by such Shareholder, and each Shareholder hereby ratifies and confirms all that the Shareholders’ Representative shall do or cause to be done in accordance with the authority granted hereby. The appointment No change or substitution of the Shareholders' ’ Representative shall be effective as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocableagainst Purchaser or the Company, until such change or substitution of the Shareholders’ Representative has been consented to in writing by Purchaser. The obligations of each Shareholder pursuant to All actions required or permitted under this Agreement (i) will not to be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in taken following the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket expenses incurred Closing by the Shareholders' Representative in his capacity as such.
(d) Each Shareholder hereby waives , and all potential conflicts of interest arising out of notices to be taken or given following the Shareholders' Representative's activities or authority as the Shareholders' Representative and his relationships with PIC or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliates.
(e) The Shareholders' Representative may resign at any time Closing by giving written notice of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, may be taken or given by the Shareholders' Representative may ’ Representative, shall be removed at any time with effective if so taken or without cause given by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' ’ Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and Purchaser shall be entitled to rely upon, shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholdersthereon.
Appears in 1 contract
The Shareholders Representative. (a) The Shareholders hereby authorizedesignate Xxxxxx X. Xxxxx, direct and appoint or such other individual as shall be designated in writing by the Shareholders in the event of the death or incapacity of Xxxxxx X. Xxxxx Xxxxxxxx (“Shareholders’ Representative”), to act serve as sole and exclusive the representative of Shareholders with respect to the matters expressly set forth in this Agreement to be performed by the Shareholders’ Representative.
(b) Each of the Shareholders, by the execution of this Agreement, hereby irrevocably appoints the Shareholders’ Representative as the agent, proxy and attorney-in-fact for such Shareholder for all purposes of this Agreement and representative of the Shareholdersdocuments associated herewith, with including the full power of substitution with respect and authority on such Shareholder’s behalf (i) to all matters under this Agreement, including, without limitation, determining, giving consummate the transactions contemplated herein and receiving notices and processes hereunder, receiving distributions of the Paid Amount therein; (ii) to or for the benefit of the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur pay such other Shareholder’s expenses as the Shareholders' Representative shall reasonably deem necessary or prudent incurred in connection with the foregoing. The Shareholders' Representative negotiation and performance of this Agreement (whether incurred on or after the date hereof); (iii) to receive and disburse any funds payable to or from any Shareholder hereunder; (iv) to endorse and deliver any certificates or instruments representing the Shares and execute such further instruments of assignment as Purchaser shall have the sole reasonably request; (v) to execute and exclusive right deliver on behalf of such Shareholder any Shareholder amendment or waiver hereto; (vi) to execute and deliver this Agreement and the Related Agreements, (vii) to take all other actions to be taken by or on behalf of such Shareholder in connection herewith; and (viii) to do each and every act and exercise any action and all rights which such Shareholder or provide the Shareholders collectively are permitted or required to do or exercise under this Agreement. Each of the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any waiver, or receive any notice with respect to any claims for indemnification under Articles XI Shareholder. All decisions and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' ’ Representative consistent herewith, (to the extent authorized by this Agreement) shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacityupon all Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' Representative on behalf of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable for allocation of particular deliveries and payments among the Shareholders.
(b) The appointment of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard to this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket expenses incurred by the Shareholders' Representative in his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts of interest arising out of the Shareholders' Representative's activities or authority as the Shareholders' Representative agrees that Purchaser and his relationships with PIC or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliates.
(e) The Shareholders' Representative may resign at any time by giving written notice of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, the Shareholders' Representative may be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and each Company shall be entitled to rely uponon any action taken by the Shareholders’ Representative, on behalf of such Shareholder, pursuant to Section 15.01(b) above (an “Authorized Action”), and that each Authorized Action shall have no liability be binding on each Shareholder as fully as if such Shareholder had taken such Authorized Action. Each Shareholder hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Shareholders’ Representative against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Shareholders’ Representative in connection with any action, suit or proceeding to which the Shareholders’ Representative is made a party by reason of the fact it is or was acting as the Shareholders’ Representative pursuant to the Shareholders with respect to, actions, decisions and determinations terms of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholdersthis Agreement.
Appears in 1 contract
The Shareholders Representative. (a) The Shareholders hereby authorizedesignate Xxxxx X. Xxxxx, direct and appoint or such other individual as shall be designated in writing by the Shareholders in the event of the death or incapacity of Xxxxx Xxxxxxxx X. Xxxxx (“Shareholders’ Representative”), to act serve as sole and exclusive the representative of Shareholders with respect to the matters expressly set forth in this Agreement to be performed by the Shareholders’ Representative.
(b) Each of the Shareholders, by the execution of this Agreement, hereby irrevocably appoints the Shareholders’ Representative as the agent, proxy and attorney-in-fact for such Shareholder for all purposes of this Agreement and representative of the Shareholdersdocuments associated herewith, with including the full power of substitution with respect and authority on such Shareholder’s behalf (i) to all matters under this Agreement, including, without limitation, determining, giving consummate the transactions contemplated herein and receiving notices and processes hereunder, receiving distributions of the Paid Amount therein; (ii) to or for the benefit of the Shareholders, contesting and settling any and all claims for indemnification pursuant to Articles XI and XII, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholders' Representative hereunder and to engage and employ agents and representatives and to incur pay such other Shareholder’s expenses as the Shareholders' Representative shall reasonably deem necessary or prudent incurred in connection with the foregoing. The Shareholders' Representative negotiation and performance of this Agreement (whether incurred on or after the date hereof); (iii) to receive and disburse any funds payable to or from any Shareholder hereunder; (iv) to endorse and deliver any certificates or instruments representing the Shares and execute such further instruments of assignment as Purchaser shall have the sole reasonably request; (v) to execute and exclusive right deliver on behalf of such Shareholder any Shareholder amendment or waiver hereto; (vi) to execute and deliver this Agreement and the Related Agreements, (vii) to take all other actions to be taken by or on behalf of such Shareholder in connection herewith; and (viii) to do each and every act and exercise any action and all rights which such Shareholder or provide the Shareholders collectively are permitted or required to do or exercise under this Agreement. Each of the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any waiver, or receive any notice with respect to any claims for indemnification under Articles XI Shareholder. All decisions and XII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' ’ Representative consistent herewith, (to the extent authorized by this Agreement) shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacityupon all Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholders hereunder or any action which the Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholders' Representative and no Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Parent or Buyer to any Shareholder hereunder shall be made exclusively to the Shareholders' Representative on behalf of the Shareholders and any delivery or payment so made to the Shareholders' Representative shall constitute full performance of the obligations hereunder of Parent or Buyer to the Shareholders. Parent and Buyer shall not be liable for allocation of particular deliveries and payments among the Shareholders.
(b) The appointment of the Shareholders' Representative as each Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Shareholder with regard to this Agreement, the PIC Shares and the transactions contemplated hereby. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Xxxxx Xxxxxxxx hereby accepts the foregoing appointment and agrees to serve as the Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Shareholders of reasonable out of pocket expenses incurred by the Shareholders' Representative in his capacity as such.
(d) Each Shareholder hereby waives all potential conflicts of interest arising out of the Shareholders' Representative's activities or authority as the Shareholders' Representative agrees that Purchaser and his relationships with PIC or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of PIC or any of its affiliates.
(e) The Shareholders' Representative may resign at any time by giving written notice of resignation, at least sixty (60) days prior to the effectiveness of such resignation, to Parent, the Shareholders, the Shareholders' Representative may be removed at any time with or without cause by the approval of the holders of seventy five percent (75%) of the PIC Shares held by the Shareholders on the Closing Date (the "Approving Holders"). Upon any such resignation or removal, such Approving Holders shall select a successor Shareholders' Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Shareholders' Representative, if no successor Shareholders' Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders' Representative), within fifteen (15) days after the resigning Shareholders' Representative's giving of notice of resignation, the resigning Shareholders' Representative (or Parent if the resigning Shareholders' Representative does not act) may, on behalf of the Approving Holders, appoint a successor Shareholders' Representative. Upon the acceptance of any appointment as the Shareholders' Representative thereunder by a successor Shareholders' Representative, such successor Shareholders' Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholders' Representative, and the resigning Shareholders' Representative shall be discharged from its duties and obligations as the Shareholders' Representative under this Agreement. After any resigning Shareholders' Representative's resignation or removal hereunder as the Shareholders' Representative, the provisions of this Article XIII shall inure to his benefit as to any actions taken or omitted to be taken by it while it was the Shareholders' Representative. Any successor Shareholders' Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Shareholders' Representative. Notwithstanding the foregoing, upon the death or disability of Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx-Xxxx shall automatically succeed as Shareholders' Representative without any further action on the part of any Person.
(f) The provisions of this Article XIII shall in no way impose any obligations on Parent or Buyer. In particular, notwithstanding any notice received by Parent or Buyer to the contrary (except any notice of the appointment of a successor Shareholders' Representative approved by Parent) and absent bad faith or willful misconduct, Parent and Buyer (i) shall be fully protected in relying upon and Salvage Disposal shall be entitled to rely uponon any action taken by the Shareholders’ Representative, on behalf of such Shareholder, pursuant to Section 15.01(b) above (an “Authorized Action”), and that each Authorized Action shall have no liability be binding on each Shareholder as fully as if such Shareholder had taken such Authorized Action. Each Shareholder hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Shareholders’ Representative against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Shareholders’ Representative in connection with any action, suit or proceeding to which the Shareholders’ Representative is made a party by reason of the fact it is or was acting as the Shareholders’ Representative pursuant to the Shareholders with respect to, actions, decisions and determinations terms of the Shareholders' Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized by all of the Shareholdersthis Agreement.
Appears in 1 contract
