Unitholder Representative. (a) Xxxx Xxxxxxx shall represent and act as agent for all the other Company Unitholders for the purposes specified in this Agreement. As Unitholder Representative, he shall be authorized and empowered, as agent of and on behalf of all Company Unitholders entitled to receive any consideration pursuant to this Agreement by reason of the Merger or otherwise having an interest in any matter concerning this Agreement, to give and receive notices and communications as provided herein, to determine the Earn-out Percentages, to object to any claim for indemnification made by any Parent Indemnified Party, to negotiate, agree to, enter into and perform (including giving any notice or instructions relating to any escrow arrangement contemplated hereby) any agreement, instrument or other document contemplated hereby to be entered into by the Company or the Company Unitholders or in the Unitholder’s judgment necessary or appropriate to the performance thereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims or proceedings in respect of which such an indemnity claim is made hereunder, to receive payments on behalf of the Company Unitholders due and owing pursuant to this Agreement (including by reduction of the Deferred Payment) and acknowledge receipt of payments due to the Company or any Company Unitholder hereunder, to waive before or after the Effective Time any breach or default of Parent, Acquiring Corp. or Merger Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each Company Unitholder in connection with any claims against such Company Unitholder arising under or in connection with this Agreement, any document or instrument provided for hereby or any of the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Unitholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. In the event of the death or disability or resignation of the initial Unitholder Representative, a substitute shall be appointed by the holders of a majority in interest of the Units by a writing delivered to Parent (and shall thereupon be the “Unitholder Representative.”) No bond shall be required of the Unitholder Representative, and the Unitholder Representative shall not receive any compensation for its services. Notices or communications to or from the Unitholder Representative shall constitute notice to or from the Company Unitholders. (b) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Unitholder Representative hereunder or thereunder, (i) the Unitholder Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to the Company Unitholders, Parent or the Surviving company by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, other than in respect of an act or omission done in bad faith or with gross negligence on the part of the Unitholder Representative, and (ii) the Unitholder Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Unitholder Representative pursuant to such advice shall in no event subject the Unitholder Representative to liability to the Company Unitholders, Parent or the Surviving company. Pursuant to the following sentence, and to the fullest extent permitted by applicable Law, the Company Unitholders shall be, severally based on each Company Unitholder’s pro rata share of the Merger Consideration and not jointly, obligated to indemnify the Unitholder Representative and hold the Unitholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Unitholder Representative and arising out of or in connection with the acceptance or administration of the Unitholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Unitholder Representative. (c) The grant of authority provided for in this Section 9.1: (i) is coupled with an interest and is being granted, in part, as an inducement to Parent and Merger Sub to enter into this Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any Company Unitholder, shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Unitholder of the whole or any fraction of his, her or its interest in the Deferred Payment. (d) In connection with the performance of his obligations hereunder, the Unitholder Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Company Unitholders (as contemplated by Section 9.1(b), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Unitholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder. (e) All of the immunities and powers granted to the Unitholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement. (f) A decision, act, consent or instruction of the Unitholder Representative, including an extension or waiver of this Agreement pursuant to Article VII or Section 9.3, as applicable, shall constitute a decision of the Company Unitholders and shall be final, binding and conclusive upon the Company Unitholders; Parent and the Surviving company may rely upon any such decision, act, consent or instruction of the Unitholder Representative as being the decision, act, consent or instruction of all the Company Unitholders. Parent and the Surviving company are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Unitholder Representative. (g) The Unitholder Representative has all requisite power, authority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Unitholder Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the “Unitholder Representative Documents”), and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Unitholder Representative Documents, the performance of its respective obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on the part of the Unitholder Representative. This Agreement has been, and each of the Unitholder Representative Documents will be at or prior to the Closing, duly and validly executed and delivered by the Unitholder Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each of the Unitholder Representative Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Unitholder Representative enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (h) Each of the Company Unitholders hereby agrees to the foregoing provisions of this Section 9.1 and shall become parties to the Merger Agreement for purposes of such Section.
Appears in 1 contract
Unitholder Representative. (a) Xxxx Xxxxxxx shall represent Each Unitholder hereby grants the Unitholder Representative full power and act as agent for authority (but not the obligation) to take all actions under this Agreement and the other Company Unitholders for Escrow Agreement that are to be taken by the purposes specified in this Agreement. As Unitholder Representative, he shall be authorized . Each Unitholder hereby authorizes the Unitholder Representative to take any and empowered, as agent of and on behalf of all Company Unitholders entitled to receive any consideration pursuant to this Agreement by reason of the Merger or otherwise having an interest in any matter concerning this Agreement, to give and receive notices and communications as provided herein, to determine the Earn-out Percentages, to object to any claim for indemnification made by any Parent Indemnified Party, to negotiate, agree to, enter into and perform (including giving any notice or instructions relating to any escrow arrangement contemplated hereby) any agreement, instrument or other document contemplated hereby to be entered into by the Company or the Company Unitholders or in the Unitholder’s judgment necessary or appropriate to the performance thereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims or proceedings in respect of which such an indemnity claim is made hereunder, to receive payments actions on behalf of the Company Unitholders due and owing pursuant to which the Unitholder Representative believes are necessary or appropriate under this Agreement (including and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as the Unitholder Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by reduction the Unitholder Representative, interpreting all of the Deferred Payment) terms and acknowledge receipt provisions of this Agreement and the Escrow Agreement, authorizing payments due to the Company or any Company Unitholder hereunder, to waive before or after the Effective Time any breach or default of Parent, Acquiring Corp. or Merger Sub of any obligation to be performed made with respect hereto or thereto, obtaining reimbursement from the Unitholders for all out-of-pocket fees and expenses and other obligations of or incurred by it under this Agreement, to receive service of process on behalf of each Company the Unitholder in connection with any claims against such Company Unitholder arising under or Representative in connection with this Agreement and the Escrow Agreement, defending all Indemnification Claims against the Escrow Fund pursuant to Article VIII and all disputes pursuant to Section 1.5 or Section 1.6 hereof, consenting to, compromising or settling all Indemnification Claims or disputes pursuant to Section 1.5 or Section 1.6, conducting negotiations with Purchaser and its agents regarding such claims or disputes, dealing with Purchaser and the Escrow Agent under this Agreement and the Escrow Agreement, taking any document or instrument provided for hereby or any of the Transactions, and to take all other actions that are either (i) necessary specified in or appropriate contemplated by this Agreement and the Escrow Agreement to be taken by the Unitholders, and engaging counsel, accountants or other representatives in connection with the judgment foregoing matters. Without limiting the generality of the foregoing, each Unitholder hereby grants the Unitholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by full power and authority to interpret all the terms and provisions of this Agreement. In Agreement and the event of the death Escrow Agreement and to consent to any amendment hereof or disability or resignation of the initial Unitholder Representative, a substitute shall be appointed by the holders of a majority thereof in interest of the Units by a writing delivered to Parent (and shall thereupon be the “Unitholder Representative.”) No bond shall be required of its capacity as the Unitholder Representative, and in each case on behalf of the Unitholder Representative shall not receive any compensation for its services. Notices or communications to or from the Unitholder Representative shall constitute notice to or from the Company Unitholders.
(b) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon Each Unitholder hereby grants the Unitholder Representative hereunder or thereunderthe authority (but not the obligation), in each case on behalf of the Unitholders, to:
(i) the Receive all notices or documents given or to be given to Unitholder Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and its agents, to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other representatives shall not assume any, advisors and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to the Company Unitholders, Parent or the Surviving company by reason of any error in judgment or such other act or omission performed or omitted hereunder or expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Unitholder Representative may in its sole discretion deem appropriate; and
(iii) At and after the Closing, take such action as the Unitholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Purchaser, or any breach of a covenant or agreement by Purchaser, in each case contained in this Agreement or in any document delivered by Purchaser pursuant hereto; (B) taking such other agreementaction as the Unitholder Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, instrument or document, other than in respect of an act or omission done in bad faith or with gross negligence on the part of its capacity as the Unitholder Representative, required under this Agreement or the Escrow Agreement; and (iiD) carrying out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification or payment is sought pursuant to Section 1.5 or Article VIII and any waiver of any obligation of Purchaser.
(c) Notwithstanding any provision herein to the contrary, each Unitholder hereby agrees that the Unitholder Representative shall be entitled have no duties to rely in good faith on the advice of counselUnitholders or have any liability to the Unitholders with respect to any action taken, public accountants decision made or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of instruction given by the Unitholder Representative pursuant to such advice shall in no event subject connection with the Escrow Agreement or this Agreement.
(d) Each Unitholder Representative to liability to the Company Unitholders, Parent or the Surviving company. Pursuant to the following sentence, and to the fullest extent permitted by applicable Law, the Company Unitholders shall be, severally based on each Company Unitholder’s pro rata share of the Merger Consideration and not jointly, obligated agrees to indemnify the Unitholder Representative for and shall hold the Unitholder Representative harmless against any loss, liability liability, fee or expense (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred without gross negligence or bad faith on the part of by the Unitholder Representative or any of its Affiliates and arising out any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in connection with the acceptance or administration of each case relating to the Unitholder Representative’s duties hereunderconduct as the Unitholder Representative, other than losses, liabilities or expenses resulting from the Unitholder Representative’s gross negligence or willful misconduct in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the reasonable fees costs and expenses of any legal enforcing this right of indemnification) shall be individual obligations of the Unitholders in proportion to their respective Pro Rata Shares of such costs. Each Unitholder hereby agrees that the Unitholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel retained and for anything done, omitted or suffered in good faith by the Unitholder RepresentativeRepresentative in accordance with such advice, the Unitholder Representative shall not be liable to the Unitholders or the Escrow Agent or any other Person. Each Unitholder hereby agrees that in no event shall the Unitholder Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages or (ii) any other amounts that may become due and payable by any Unitholder hereunder.
(ce) The grant of authority provided for Each Unitholder agrees that in this Section 9.1: (i) is coupled with an interest and is being granted, in part, as an inducement to Parent and Merger Sub to enter into this Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any Company Unitholder, shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Unitholder of the whole or any fraction of his, her or its interest in the Deferred Payment.
(d) In connection with the performance of his obligations its duties hereunder, the Unitholder Representative shall have be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Unitholder or any Party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the right at any time and from time provisions hereof has been duly authorized to time to select and engage, at the cost and expense of the Company Unitholders (as contemplated by Section 9.1(b), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Unitholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(e) All of the immunities and powers granted to the Unitholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreementdo so.
(f) A decision, act, consent or instruction of Each Unitholder hereby authorizes the Unitholder Representative, including an extension in its sole discretion, to comply with final, nonappealable orders or waiver decisions issued or process entered by any court of this Agreement pursuant competent jurisdiction or arbitrator with respect to Article VII or Section 9.3, as applicable, shall constitute a decision the Escrow Fund. If any portion of the Company Unitholders and shall be final, binding and conclusive upon the Company Unitholders; Parent and the Surviving company may rely upon any such decision, act, consent or instruction of Escrow Fund is disbursed to the Unitholder Representative as being and is at any time attached, garnished or levied upon under any court order, or in case the decisionpayment, actassignment, consent transfer, conveyance or instruction delivery of all the Company Unitholders. Parent any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and the Surviving company are in any such event, each Unitholder hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of authorizes the Unitholder Representative, in its sole discretion, but in good faith, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the need for appeal or other action; and if the Unitholder Representative complies with any such order, writ, judgment or decree, each Unitholder hereby agrees that it shall not be liable to any Unitholder or to any other Person by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled set aside or vacated.
(g) The Each Unitholder hereby irrevocably constitutes and appoints the Unitholder Representative has as such Unitholder’s true and lawful attorney-in-fact and agent and authorizes him to act for such Unitholder and in such Unitholder’s name, place and stead, in any and all requisite power, authority capacities to do and legal capacity perform every act and thing required or permitted to execute and deliver be done in connection with this Agreement and each other the Escrow Agreement, as fully to all intents and purposes as such Unitholder might or could do in person, including taking any and all action on behalf of such Unitholder from time to time as contemplated hereunder and thereunder. Any delivery by the Unitholder Representative of any waiver, amendment, agreement, documentopinion, certificate or instrument or certificate contemplated by this Agreement or to be other document executed by the Unitholder Representative in connection will bind each Unitholder by such documents or action as fully as if such Unitholder had executed and delivered such documents. This appointment and power of attorney shall be deemed an agency coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be subject to termination by operation of law, whether by the consummation death or incapacity of any Unitholder or the transactions contemplated by this Agreement (together with this Agreementoccurrence of any other event or events. Such appointment shall be binding upon the heirs, the “Unitholder Representative Documents”)executors, administrators, estates, personal representatives, officers, directors, security holders, successors and to consummate the transactions contemplated hereby and therebyassigns of each such Unitholder. The execution and delivery of this Agreement and each All decisions of the Unitholder Representative Documents, the performance of its respective obligations hereunder shall be final and thereunder and the consummation binding on all of the transactions contemplated hereby and thereby have been duly authorized by all required action on the part of the Unitholder Representative. This Agreement has beenUnitholder, and each of no such Unitholders shall have the right to object, dissent, protest or otherwise contest the same. Purchaser shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Unitholder Representative Documents will be at or prior to the Closing, duly and validly any document executed and delivered by the Unitholder Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each on behalf of the Unitholder Representative Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Unitholder Representative enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(h) Each of the Company any Unitholders hereby agrees to the foregoing provisions of this Section 9.1 and shall become parties be fully protected in connection with any action or inaction taken or omitted to the Merger Agreement for purposes of such Sectionbe taken in reliance thereon, absent willful misconduct.
Appears in 1 contract
Unitholder Representative. (a) Xxxx Xxxxxxx shall represent and act as agent for all the other Company Unitholders for the purposes specified in this Agreement. As Unitholder Representative, he shall be authorized and empowered, as agent By their execution of and on behalf of all Company Unitholders entitled to receive any consideration pursuant to this Agreement by reason of the Merger or otherwise having an interest in any matter concerning this Agreement, to give the Existing Unitholders and receive notices Owners shall be deemed, for themselves and communications as provided hereintheir personal representatives and other successors, to determine have constituted and appointed, effective from and after the EarnClosing, MVH 18, LLC, a Utah limited liability company, as their agent and attorney-out Percentages, in-fact (the “Unitholder Representative”) to object to any claim for indemnification made by any Parent Indemnified Party, to negotiate, agree to, enter into take all action required or permitted under this Agreement and perform (including giving any notice or instructions relating to any escrow arrangement contemplated hereby) any agreement, instrument or other document contemplated hereby to be entered into by the Company or the Company Unitholders or in the Unitholder’s judgment necessary or appropriate to the performance thereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims or proceedings in respect of which such an indemnity claim is made hereunder, to receive payments Escrow Agreement on behalf of the Company Existing Unitholders due and owing pursuant to this Agreement (including by reduction Owners, the giving and receiving of all notices and consents and the execution and delivery of the Deferred Payment) Escrow agreement and acknowledge receipt of payments due to the Company or all other documents, including any Company Unitholder hereunder, to waive before or after the Effective Time any breach or default of Parent, Acquiring Corp. or Merger Sub amendments of any obligation to be performed by it under this Agreementnon-material term or provision hereof, to receive service and the execution and delivery of process on behalf of each Company Unitholder any agreements and releases in connection with the settlement of any claims against such Company Unitholder arising dispute or claim under or in connection with this Agreement, any document or instrument Article 9 hereof and as provided for hereby or any of the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Unitholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. In the event of the death or disability or resignation of the initial Unitholder Representative, a substitute shall be appointed by the holders of a majority in interest of the Units by a writing delivered to Parent (and shall thereupon be the “Unitholder Representative.”) No bond shall be required of the Unitholder Representative, and the Unitholder Representative shall not receive any compensation for its services. Notices or communications to or from the Unitholder Representative shall constitute notice to or from the Company Unitholderselsewhere herein.
(b) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any the event of the powers conferred upon the Unitholder Representative hereunder death, physical or thereunder, (i) the Unitholder Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to the Company Unitholders, Parent mental incapacity or the Surviving company by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, other than in respect of an act or omission done in bad faith or with gross negligence on the part resignation of the Unitholder Representative, the Existing Unitholders shall, or for any other reason, the Existing Unitholders may appoint, by majority vote of the Existing Unitholders, a further substitute or substitutes and shall advise Symbion and the Company thereof. As between the Unitholder Representative and the Existing Unitholders, the Unitholder Representative shall not be liable for, and shall be indemnified by the Existing Unitholders or provided with insurance against, any good faith error of judgment on its part or any other act done or omitted by it in good faith in connection with its duties as Unitholder Representative, except for gross negligence or willful misconduct. The Unitholder Representative may consult with professional advisors of its choice. The Unitholder Representative shall not be responsible for the genuineness or validity of any document and shall have no liability for acting in accordance with any written instructions given to them and believed by them to be signed by the proper parties. All expenses incurred by the Unitholder Representative in performing its duties (iiincluding fees and expenses of professional advisors) and any indemnification to be provided to the Unitholder Representative shall be entitled severally borne by the Existing Unitholders and, as to rely in good faith on each Existing Unitholder, jointly and severally among its Owners. The Unitholder Representative may draw from the advice amounts held by the Escrow Agent specifically for the purpose of counsel, public accountants or other independent experts experienced in the matter at issue, and paying any error in judgment or other act or omission out-of-pocket expenses of the Unitholder Representative pursuant to such advice shall Section 1.5(a)(C) hereof in no event subject the Unitholder Representative to liability to the Company Unitholders, Parent or the Surviving company. Pursuant to the following sentence, and to the fullest extent permitted by applicable Law, the Company Unitholders shall be, severally based on each Company Unitholder’s pro rata share of the Merger Consideration and not jointly, obligated to indemnify the Unitholder Representative and hold the Unitholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Unitholder Representative and arising out of or in connection with the acceptance or administration of the Unitholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Unitholder Representative.
(c) The grant of authority provided for in this Section 9.1: (i) is coupled with an interest and is being granted, in part, as an inducement to Parent and Merger Sub to enter into this Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any Company Unitholder, shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Unitholder of the whole or any fraction of his, her or its interest in the Deferred Payment.
(d) In connection with the performance of his obligations hereunderits duties hereunder and under the Escrow Agreement, provided that the Unitholder Representative shall have the right at keep records evidencing all such expenses and shall make such records available to any time and from time to time to select and engage, at the cost and expense of the Company Unitholders (as contemplated by Section 9.1(b), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Unitholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunderMembers upon request.
(e) All of the immunities and powers granted to the Unitholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement.
(f) A decision, act, consent or instruction of the Unitholder Representative, including an extension or waiver of this Agreement pursuant to Article VII or Section 9.3, as applicable, shall constitute a decision of the Company Unitholders and shall be final, binding and conclusive upon the Company Unitholders; Parent and the Surviving company may rely upon any such decision, act, consent or instruction of the Unitholder Representative as being the decision, act, consent or instruction of all the Company Unitholders. Parent and the Surviving company are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Unitholder Representative.
(g) The Unitholder Representative has all requisite power, authority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Unitholder Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the “Unitholder Representative Documents”), and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Unitholder Representative Documents, the performance of its respective obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on the part of the Unitholder Representative. This Agreement has been, and each of the Unitholder Representative Documents will be at or prior to the Closing, duly and validly executed and delivered by the Unitholder Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each of the Unitholder Representative Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Unitholder Representative enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(h) Each of the Company Unitholders hereby agrees to the foregoing provisions of this Section 9.1 and shall become parties to the Merger Agreement for purposes of such Section.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Symbion Inc/Tn)
Unitholder Representative. (a) Xxxx Xxxxxxx shall represent Each Holder irrevocably appoints the Unitholder Representative as such Holder’s representative, agent, proxy and attorney-in-fact, with full power of substitution to act as agent for all the other Company Unitholders for the purposes specified in this Agreement. As Unitholder Representative, he shall be authorized and empowered, as agent of and on behalf of all Company Unitholders entitled to receive any consideration pursuant to this Agreement by reason of the Merger or otherwise having an interest in any matter concerning this Agreement, to give and receive notices and communications as provided herein, to determine the Earn-out Percentages, to object to any claim for indemnification made by any Parent Indemnified Party, to negotiate, agree to, enter into and perform (including giving any notice or instructions relating to any escrow arrangement contemplated hereby) any agreement, instrument or other document contemplated hereby to be entered into by the Company or the Company Unitholders or in the Unitholder’s judgment necessary or appropriate to the performance thereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims or proceedings in respect of which such an indemnity claim is made hereunder, to receive payments on behalf of the Company Unitholders due Holders including the full power and owing pursuant authority to act on the Holders’ behalf to, including, but not limited to, (i) consummate the transactions contemplated under this Agreement (including by reduction the adjustments under the Escrow Agreement) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (ii) negotiate disputes arising under, or relating to, this Agreement (including with respect to the adjustments under the Escrow Agreement) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; and (iii) execute and deliver any consent, amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Deferred Payment) and acknowledge receipt of payments due to the Company or any Company Unitholder hereunder, to waive before or after the Effective Time any breach or default of Parent, Acquiring Corp. or Merger Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each Company Unitholder in connection with any claims against such Company Unitholder arising under or in connection with this Agreement, any document or instrument provided for hereby or any of the TransactionsHolders), and to take all other actions that such agency and proxy are either (i) necessary or appropriate in coupled with an interest, are therefore irrevocable without the judgment consent of the Unitholder Representative for and shall survive the accomplishment death, incapacity, bankruptcy, dissolution or liquidation of any Holder. All decisions, actions, consents and instructions by the Unitholder Representative shall be binding upon all of the foregoing Holders, and no Holder shall have the right to object to, dissent from, protest or (ii) specifically mandated by otherwise contest the terms of this Agreementsame. In Parent shall not have the event of the death or disability or resignation of the initial Unitholder Representativeright to object to, a substitute shall be appointed by the holders of a majority in interest of the Units by a writing delivered to Parent (and shall thereupon be cause its Affiliates not to, dissent from, protest or otherwise contest the “Unitholder Representative.”) No bond shall be required authority of the Unitholder Representative. Each of Parent, the Escrow Agent and the Paying Agent shall be entitled to rely on any decision, action, consent or instruction of the Unitholder Representative as being the decision, action, consent or instruction of each and every Holder, and each of Parent, the Escrow Agent and the Paying Agent are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By their approval of this Agreement, each Holder shall not receive be deemed to have waived any compensation for its services. Notices claims he, she or communications to it may have or from assert, including those that may arise in the future, against the Unitholder Representative for any action or inaction taken or not taken by the Unitholder Representative in connection with such Person’s capacity as Unitholder Representative except to the extent that such action or inaction shall have been held by a court of competent jurisdiction to constitute notice to or from the Company Unitholdersintentional and knowing fraud.
(b) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any All acts of the powers conferred upon the Unitholder Representative hereunder or thereunder, (i) in its capacity as such shall be deemed to be acts on behalf of the Holders and not of the Unitholder Representative and its agents, counsel, accountants and other representatives individually. The Unitholder Representative shall not assume any, and shall incur no, responsibility whatsoever (in each case, be liable to the extent permitted by applicable Law) to the Company UnitholdersCompany, Parent or the Surviving company by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement Parent, Merger Sub or any such other agreement, instrument or document, other than Person in respect of an act or omission done in bad faith or with gross negligence on the part of its capacity as the Unitholder Representative, and for any liability of a Holder.
(iic) the Unitholder Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Unitholder Representative pursuant to such advice shall in no event subject the Unitholder Representative to liability to the Company Unitholders, Parent or the Surviving company. Pursuant to the following sentence, and to the fullest extent permitted by applicable Law, the Company Unitholders shall be, severally based on each Company Unitholder’s pro rata share of the Merger Consideration and not jointly, obligated The Holders agree to indemnify the Unitholder Representative Representative, on a pro rata basis as provided in the Escrow Agreement, for any and hold all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever in excess of the funds in the Unitholder Representative harmless Expense Account which may at any time be imposed on, incurred by or asserted against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Unitholder Representative and in any way relating to or arising out of or in connection with the acceptance or administration of the Unitholder Representative’s duties hereunder, including hereunder or any documents contemplated by or referred to herein or therein or the reasonable fees and expenses transactions contemplated hereby or thereby or the enforcement of any legal counsel retained by of the terms hereof or thereof; provided, however, that no Holder shall be liable for any of the foregoing to the extent they arise out of the Unitholder Representative.
(c) The grant ’s commission of authority provided for in intentional and knowing fraud; provided, further, that a Holder’s aggregate indemnification obligations pursuant to this Section 9.1: (i) is coupled with an interest and is being granted, in part, as an inducement to Parent and Merger Sub to enter into this Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any Company Unitholder, shall be binding on any successor thereto, and (ii3.6(c) shall survive not exceed an amount equal to the delivery aggregate consideration actually receivable by such Holder pursuant to the terms of an assignment by any Company Unitholder of this Agreement and the whole or any fraction of his, her or its interest in the Deferred PaymentEscrow Agreement.
(d) In connection with the performance of his obligations hereunder, the The Unitholder Representative shall have the right may resign at any time time, and from time to time to select and engage, at may be removed for any reason or no reason by the cost and expense written consent of the holders of a majority of the Company Unitholders Units outstanding immediately prior to the Effective Time (as contemplated by Section 9.1(bthe “Majority Holders”), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as . In the Unitholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(e) All event of the immunities and powers granted to the Unitholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement.
(f) A decisiondeath, actincapacity, consent resignation or instruction removal of the Unitholder Representative, including an extension or waiver of this Agreement pursuant to Article VII or Section 9.3, as applicable, a new Unitholder Representative shall constitute a decision be appointed by the written consent of the Company Unitholders and Majority Holders. A copy of such written consent appointing such new Unitholder Representative shall be finalsent to Parent and, binding and conclusive after the Effective Time, to the Surviving Company, such appointment to be effective upon the Company Unitholders; later of the date indicated in such consent or the date such consent is received by Parent and and, after the Effective Time, the Surviving company may rely upon any such decision, act, consent or instruction of the Unitholder Representative as being the decision, act, consent or instruction of all the Company Unitholders. Parent and the Surviving company are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Unitholder RepresentativeCompany.
(g) The Unitholder Representative has all requisite power, authority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Unitholder Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the “Unitholder Representative Documents”), and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Unitholder Representative Documents, the performance of its respective obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on the part of the Unitholder Representative. This Agreement has been, and each of the Unitholder Representative Documents will be at or prior to the Closing, duly and validly executed and delivered by the Unitholder Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each of the Unitholder Representative Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Unitholder Representative enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(h) Each of the Company Unitholders hereby agrees to the foregoing provisions of this Section 9.1 and shall become parties to the Merger Agreement for purposes of such Section.
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