Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.
Appears in 2 contracts
Samples: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Representative. (a) Effective upon and by virtue of In order to efficiently administer the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of obligations specified in this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by efficiently represent the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf interests of the Company Securityholders with respect to any matter all matters arising under this Agreement or Actions arising out of or relating to this the Escrow Agreement, or by virtue of the transactions contemplated hereby, approval of this Agreement and the Acquisition (iv) taking all actions and making all filings on behalf no act of such Company Securityholders with any Governmental Authority or other Person necessary to effect Securityholder), and the consummation of the transactions contemplated by this AgreementAcquisition or participating in the Acquisition and receiving the benefits thereof, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) including the right to receive the consideration payable in connection with any of the foregoing actionsAcquisition, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of each Company Securityholder appoints the Representative as each its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact revokes effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any power agreements ancillary hereto including to (A) act according to the terms of attorney heretofore granted that authorized any other Person to this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with regard respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any other agreements agreements, certificates, receipts, instructions, notices or documents executed instruments contemplated by or delivered deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative is agrees to act as the sole representative, agent and exclusive representative attorney-in-fact of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersSecurityholder. Each Company Securityholder shall promptly provide written notice to Securityholders agrees, by virtue of the Representative approval of any change of address this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
Representative. (a) Effective upon and the receipt by virtue the Company of the Required Requisite Stockholder Approval and hisApproval, her or its acceptance of by the consideration payable under the terms and conditions approval of this Agreement, each Stockholder hereby irrevocably constitutes and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its the true and lawful agent and attorney-in-fact and agent of the Stockholders, for and on behalf of such Company Securityholder for purposes the Stockholders, with full power of this Agreement substitution and any other agreements authority to act in the name, place and documents executed or delivered in connection stead of the Stockholders with respect to the Merger and the transactions contemplated by this Agreement. The Representative shall take such actions , to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, to give and receive notices and communications on behalf of the Stockholders, and to do or refrain from doing all such Company Securityholder further acts and things, and to execute all such documents as it may the Representative shall deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyby this Agreement, including, without limitation, including the power to (i) accepting service to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of process on courts and awards of arbitrators with respect to claims for indemnification, to authorize deliver to Buyer or any Indemnified Party of any payment hereunder, and to otherwise act for the Company SecurityholdersStockholders with regard to all matters pertaining to indemnification referred to in this Agreement, (ii) executing execute and delivering this Agreement, and any other ancillary documents and negotiating and executing such deliver all amendments, modificationswaivers, waivers Ancillary Agreements, stock powers, certificates and documents that the Representative deems necessary or changes thereto as to which the Representative, appropriate in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders connection with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (iii) receive funds and make payments of funds to pay any amounts that the Representative has incurred or reasonably expects to incur in connection with the Stockholders’ obligations under this Agreement, including amounts required to pay the fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement, (iv) do or refrain from doing any further act or deed on behalf of the Stockholders that the Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Stockholders could do if personally present, and (v) agreeing to, negotiating, entering into settlements and compromises of, complying receive service of process in connection with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Connecture Inc), Agreement and Plan of Merger (Connecture Inc)
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of By executing this Agreement, and without any further act of any each of the Company Securityholders, each Company Securityholder hereby appoints TRA Parties shall be deemed to have irrevocably appointed the Representative as his, her or its attorney-in-agent and attorney in fact with full power of substitution to act from and agent for after the date hereof and to do any and all things and execute any and all documents on behalf of such Company Securityholder for purposes TRA Parties which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent provided in this Agreement, receipt and forwarding of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement Agreement; (iv) any and any other agreements and documents executed all consents, waivers, amendments or delivered in connection with this Agreement. The Representative shall take such actions to be taken modifications deemed by the Representative to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) taking actions the Representative is authorized to take pursuant to the other agreements provisions of this Agreement; (vi) negotiating and documents executed compromising, on behalf of such TRA Parties, any dispute that may arise under, and exercising or delivered refraining from exercising any remedies available under, this Agreement and executing, on behalf of such TRA Parties, any settlement agreement, release or other document with respect to such dispute or remedy; and (vii) engaging attorneys, accountants, agents or consultants on behalf of such TRA Parties in connection with this Agreement and such other actions paying any fees related thereto on behalf of such Company Securityholder as it TRA Parties, subject to reimbursement by such TRA Parties. The Representative may deem necessary or appropriate in connection with or resign upon 30 days’ written notice to consummate PubCo, provided that the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as Representative has found a replacement to which become the Representative, which is acceptable to PubCo in its sole reasonable discretion. If PubCo determines in its reasonable discretion that such replacement is not acceptable, PubCo shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared identify a replacement to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge become the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate , which is acceptable to the resigning Representative in its reasonable discretion. If the judgment of the resigning Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered determines in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, its reasonable discretion that the replacement identified by PubCo is not acceptable, the resigning Representative and PubCo shall use commercially reasonable efforts based on contact information available cooperate in good faith to the Representative identify a replacement acceptable to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of each such Company Securityholderparty.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Symbotic Inc.), Agreement and Plan of Merger (SVF Investment Corp. 3)
Representative. (a) Effective upon and For purposes of this Agreement, the Escrowed Holders, by virtue of the Required Stockholder Approval and his, her or its acceptance approval of the consideration payable under the terms Mergers and conditions of this Agreement, Agreement and without any further act action on the part of any such Escrowed Holder or the Company, shall be deemed to have consented to the appointment of the Company SecurityholdersRepresentative, each Company Securityholder hereby appoints as the Representative as his, her or its exclusive agent and attorney-in-fact under this Agreement, the Paying Agent Agreement, and agent the Escrow Agreement for and on behalf of each such Company Securityholder for purposes Escrowed Holder and the taking by Representative of this Agreement any and all actions and the making of any other agreements and documents executed decisions required or delivered in connection with this Agreement. The Representative shall take such actions permitted to be taken by the Representative under and subject to the terms, conditions and limitations, of this Agreement, the Paying Agent Agreement, and the Escrow Agreement, including the exercise of the power to (a) prepare, execute and deliver this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as Transaction Documents to which the Representativeit is a party, in its sole discretionany document, shall have consented (provided that any waiver certificate or amendment that shall adversely and disproportionately affect the rights other instrument required to be delivered by or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Escrowed Holders and any amendments hereto and thereto, (b) authorize delivery to Parent and the Surviving Company Securityholders of the Escrow Fund or any 99 portion thereof, in satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to any matter or Actions arising out of or relating such Indemnification Claims and to this Agreement, or the transactions contemplated hereby, (iv) taking all actions pursue remedies and making all filings on behalf of such Company Securityholders Legal Proceedings in connection with any Governmental Authority or other Person necessary to effect the consummation alleged breach of the transactions contemplated by this Agreement, (vd) agreeing toresolve any Indemnification Claims, negotiating, entering into settlements (e) make and compromises of, complying with orders of courts settle determinations and calculations with respect toto distributions and allocations of the Net Aggregate Consideration and any portion thereof, including, the Escrow Fund and the Representative Expense Amount, (f) to give and receive notices and communications hereunder, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vig) interpreting take all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be actions necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing (including engaging counsel, accountants or contemplated other advisors in connection with the foregoing matters) and all of the other terms, conditions and limitations of this Agreement, the Paying Agent Agreement, and the Escrow Agreement or that are specifically mandated by the terms of this Agreement. The Notwithstanding the foregoing, the Representative hereby accepts such appointment. The appointment shall have no obligation to act on behalf of the Escrowed Holders, except as expressly provided herein, in the Escrow Agreement and the Paying Agent Agreement, and for purposes of clarity, there are no obligations of the Representative as each in any ancillary agreement, schedule, exhibit or the Company Securityholder’s attorney-in-fact revokes Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any power Escrowed Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of attorney heretofore granted that authorized an assignment by any other Person to represent such Company Securityholder with regard to this Agreement Escrowed Holder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Escrowed Holders and any other agreements or documents executed or delivered their successors will be bound by all actions taken by Representative in connection with this Agreement. The Representative is , the sole Escrow Agreement, and exclusive representative of each the Paying Agent Agreement as if expressly confirmed and ratified in writing by the Escrowed Holders, all defenses which may be available to any Escrowed Holder to contest, negate or disaffirm the action of the Company Securityholders for any purpose provided for by Representative taken in good faith under this Agreement. Representative , the Escrow Agreement, or the Paying Agent Agreement are waived, and Parent and the Surviving Company shall be bound by the same confidentiality restrictions binding Company pursuant entitled to Section 5.7 provided, however, that rely on any action or decision of Representative.. Neither the Representative shall use commercially reasonable efforts based on contact information available to nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Representative to keep the Company Securityholders reasonably informed Group”), will incur liability with respect to actions any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction in connection with the acceptance or administration of the Representative’s responsibilities hereunder, under the Escrow Agreement or the Paying Agent Agreement, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement, the Escrow Agreement or the Paying Agent Agreement, Representative pursuant may: (i) rely on the advice of counsel, and Representative will not be liable to the authority granted Escrowed Holders for anything done, omitted or suffered in good faith by Representative under this Agreement which actions have based on such advice, (ii) rely upon the Allocation Schedule, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a material impact signatory has proper authorization to sign on behalf of the amounts payable to the Company Securityholdersapplicable Escrowed Holder or other party. Each Company Securityholder shall promptly provide written notice to The Escrowed Holders shall, severally and not jointly, based on their Indemnity Pro Rata Share, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all suits, actions, causes of any change action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs, judgments, amounts paid in settlement and expenses (including reasonable attorneys’ fees and court costs and fees and expenses of address counsel and experts and in connection with seeking recovery from insurers, and all expenses of such Company Securityholder.document location, duplication and shipment) (collectively,
Appears in 2 contracts
Samples: Agreement and Plan of Mergers (Oddity Tech LTD), Agreement and Plan of Mergers (Oddity Tech LTD)
Representative. (a) Effective upon Awardee authorizes the Data Recipients to receive, possess, use, retain and by virtue transfer Data, in electronic or other form, for the purposes of the Required Stockholder Approval and hisimplementing, her or its acceptance of the consideration payable under the terms and conditions of this Agreementadministering, and managing Awardee’s participation in the Plan. Awardee understands that Data will be held only as long as is necessary to implement, administer and manage Awardee’s participation in the Plan. Awardee understands that, if Awardee resides outside the United States, Awardee may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data to make the information contained therein factually accurate, or refuse or withdraw the consents herein, in any case without any further act cost, by contacting in writing Awardee’s local human resources representative. Further, Awardee understands that Awardee is providing the consents herein on a purely voluntary basis. If Awardee does not consent, or if Awardee later seeks to revoke the consents, Awardee’s employment with the Employer will not be affected; the only consequence of any refusing or withdrawing the consents is that the Company would not be able to grant Restricted Stock Units or other equity awards to Awardee or administer or maintain such awards. Therefore, Awardee understands that refusing or withdrawing the consents may affect Awardee’s ability to participate in the Plan. For more information on the consequences of Awardee’s refusal to consent or withdrawal of consent, Awardee understands that Awardee may contact in writing Awardee’s local human resources representative. Upon request of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated herebyEmployer, Awardee agrees to provide a separate executed data privacy consent form (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of consents that may be required by the Company Securityholders and/or the Employer) that the Company and/or the Employer may deem necessary to obtain from Awardee for the purpose of administering Awardee’s participation in the Plan in compliance with the data privacy laws in Awardee’s country, either now or in the future. Awardee understands and agrees that Awardee will not be able to participate in the Plan if Awardee fails to provide any purpose provided for by this Agreement. Representative shall be bound such consent or agreement requested by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that and/or the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderEmployer.
Appears in 1 contract
Samples: Global Restricted Stock Unit Agreement (Citrix Systems Inc)
Representative. (a) Effective upon and by By virtue of the Required Stockholder Approval execution and his, her or its acceptance delivery of the consideration payable under the terms Joinder and conditions of this Release Agreement, and without any further act of any “Representative” means Xxx Xxxxxxxxxx, not as an officer, manager or member of the Company SecurityholdersCompany, but as an individual representing the stockholder pursuant to a power of attorney granted by the stockholder to the Representative. Any amendment, consent or approval required or action by the stockholder pursuant to this Agreement will be effected by the Representative. The Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Stockholders according to each Company Securityholder hereby appoints Stockholder's pro rata share (“Pro Rata Share”) of the Merger Consideration (the "Majority Holders"); provided, however, in no event shall Representative as hisresign or be removed without the Majority Holders having first appointed a new Representative who shall assume such duties immediately upon the resignation or removal of Representative. In the event of the death, her incapacity, resignation or its attorney-in-fact and agent for and on behalf removal of Stockholder Representative, a new Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such Company Securityholder for purposes vote or a copy of this Agreement the written consent appointing such new Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and any other agreements the Surviving Corporation shall be entitled to rely on the decisions and documents executed or delivered in connection with this Agreementactions of the prior Representative. The Representative shall take not be liable to the Stockholders for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Representative shall be taken by the conclusive evidence of good faith). The Stockholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Representative under this Agreement and (the "Representative Losses"), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any other agreements and documents executed portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or delivered in connection with this Agreement and such other actions on behalf bad faith of Representative, Representative shall reimburse the Stockholders the amount of such Company Securityholder as it may deem necessary indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreementbad faith. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative Losses shall be bound by satisfied from the same confidentiality restrictions binding Company pursuant to Section 5.7 providedStockholders, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed severally and not jointly (in accordance with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholdertheir Pro Rata Shares).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Liquid Media Group Ltd.)
Representative. (a) Effective upon and by virtue In its capacity, the Administrative Agent is a “representative” of the Required Stockholder Approval and his, her or its acceptance Secured Parties within the meaning of the consideration payable under term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms and conditions of this Agreementthe Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and without any further act hereby granted a power of any of the Company Securityholdersattorney, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact to execute and agent for and on behalf of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices deliver on behalf of the Company Securityholders with respect Secured Parties any Loan Documents necessary or appropriate to any matter or Actions arising out grant and perfect a Lien on such Collateral in favor of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings Administrative Agent on behalf of such Company Securityholders with the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Governmental Authority Lien granted to or other Person necessary to effect held by the consummation Administrative Agent upon any Collateral (i) as described in Section 10.02; (ii) as permitted by, but only in accordance with, the terms of the transactions contemplated applicable Loan Document; or (iii) if approved, authorized or ratified in writing by this Agreementthe Required Lenders, (v) agreeing tounless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, negotiatingthe Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, entering into settlements and compromises ofor consented to in writing by the Required Lenders or all of the Lenders, complying with orders of courts with respect toas applicable, and otherwise administering upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and handling any claims under this Agreement on behalf of is hereby irrevocably authorized by the Lenders to) execute such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts documents as may be necessary and appropriate properly to discharge evidence the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment release of the Representative Liens granted to the Administrative Agent for the accomplishment benefit of the foregoing Secured Parties herein or contemplated by pursuant hereto upon the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted Collateral that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements was sold or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 transferred; provided, however, that (i) the Representative Administrative Agent shall use commercially reasonable efforts based not be required to execute any such document on contact information available terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address release of such Company SecurityholderLiens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral.
Appears in 1 contract
Samples: Credit Agreement (Acxiom Corp)
Representative. The Sellers hereby appoint IPS to act as the “Sellers’ Representative” as (ai) Effective upon the agent and by virtue of the Required Stockholder Approval true and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its lawful attorney-in-fact of each Seller, with full power of substitution, and agent with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of such Company Securityholder for purposes of each Seller holder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement and any other agreements the Closing contemplated herein and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by (ii) the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting agent for service of process on for each Seller and the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as Sellers irrevocably consent to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations service of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving and all process in any action or providing notices on behalf of the Company Securityholders with respect to any matter or Actions proceeding arising out of or relating to this Agreement by the delivery of such process to the Sellers’ Representative. Without limiting the generality of the foregoing, the power of the Sellers’ Representative shall include the power to represent each Seller with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) waive any and all conditions of this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith in any respect, (iii) bring, assert, defend, negotiate or the transactions contemplated herebysettle any claims or actions for indemnity pursuant to this Agreement, (iv) taking retain legal counsel and be reimbursed by the Sellers for all actions fees, expenses and making all filings on behalf other charges of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreementlegal counsel, (v) agreeing todesignate an agent to receive, negotiatinghold and disburse monies or securities paid or delivered hereunder; (vi) receive notices or other communications, entering into settlements (vii) deliver any notices, certificates or other documents required and compromises of, complying with orders of courts (viii) take all such other action and to do all such other things as the Sellers’ Representative deems necessary or advisable with respect toto this Agreement, including, without limitation, to provide all approvals and otherwise administering consents of the Sellers contemplated hereunder. The Purchaser shall have the absolute right and handling any claims under this Agreement authority to rely upon the acts taken or omitted to be taken by the Sellers’ Representative on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any the Sellers and Purchaser shall have no duty to inquire as to the acts and omissions of the foregoing actionsSellers’ Representative. In the event the Sellers’ Representative refuses to, engaging and hiring accountantsor is no longer capable of, auditorsserving as the Sellers’ Representative hereunder, appraisers, legal counsel and other legal and financial experts as may the Sellers by approval of those holders entitled to receive at least 65% of the Purchase Price hereunder shall promptly appoint a successor Sellers’ Representative who shall thereafter be necessary and appropriate properly to discharge the Representative’s duties and obligations a successor Sellers’ Representative hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Sellers’ Representative shall be bound by the same confidentiality restrictions binding Company pursuant serve until such successor is duly appointed and qualified to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholderact hereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Solomon Technologies Inc)
Representative. (a) Effective upon Fortis Advisors LLC is hereby constituted and by virtue of the Required Stockholder Approval appointed as exclusive agent and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent attorney‑in‑fact for and on behalf of such Company Securityholder for purposes of this Agreement the Seller Indemnitors and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by is the Representative for all purposes under this Agreement and any other agreements the Escrow Agreement. Without limiting the generality of the foregoing, the Representative has full power and documents executed or delivered in connection with this Agreement and such other actions authority, on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or each Seller Indemnitor, to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service interpret the terms and provisions of process on this Agreement, any Ancillary Agreement and the Company Securityholdersdocuments to be executed and delivered by the Seller Indemnitors in connection herewith, including the Escrow Agreement and the Representative Agreement, (ii) executing execute and delivering this Agreementdeliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and any other ancillary documents and negotiating and executing such amendments, modifications, waivers required or changes thereto as permitted to which the Representative, be given in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders connection with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, including the Escrow Agreement, (viii) agreeing receive service of process in connection with any claims under this Agreement, the Escrow Agreement or the Representative Agreement, (iv) agree to, negotiating, entering negotiate and enter into settlements and compromises of, complying and assume the defense of, claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, and otherwise administering and handling to any claims under this Agreement, any Ancillary Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with or any other documents to be executed and delivered by any of the foregoing actionsSeller Indemnitors, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking take all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or contemplated by appropriate in the terms of this Agreement. The Representative hereby accepts such appointment. The appointment judgment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power on behalf of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered the Seller Indemnitors in connection with this Agreement. The , the Escrow Agreement and the Representative is Agreement, (vii) make any determinations and settle any matters in connection with the sole and exclusive representative of each adjustments to the Estimated Cash Merger Consideration in Section 2.11 (including authorizing delivery to Parent of the Company Securityholders Adjustment Escrow Funds or any portion thereof), (viii) authorize delivery to any Parent Indemnitee of the Escrow Funds or any portion thereof in satisfaction of claims brought by any Parent Indemnitee for Losses, (ix) in the case of the Founders and the Founder Stockholder, authorize delivery to any purpose provided Parent Indemnitee of the Founder Escrow Funds or any portion thereof in satisfaction of claims brought by any Parent Indemnitee for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.Losses (ix)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Logitech International S.A.)
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions For purposes of this Agreement, immediately and automatically upon the Required Vote, and without any further act action on the part of any of the Company SecurityholdersSecurityholder, each Company Securityholder hereby appoints shall be deemed to have consented to the Representative appointment of Xxxxxx Cell as his, her or its representative and the attorney-in-fact and agent for and on behalf of each such Company Securityholder for purposes Securityholder, and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by him or her under this Agreement and any Agreement, including the disposition, settlement or other agreements and documents executed or delivered handling of all Liability Claims. The Company Securityholders will be bound by all actions taken by the Representative in connection with this Agreement, and Parent shall be entitled to rely on any notice or communication to or by, or decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative. The Representative shall take such actions Without limiting the generality of the foregoing, each decision, action, failure to be taken by act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative under this Agreement will constitute a decision of all of the Indemnifying Securityholders and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreementwill be final, binding and conclusive upon each ***CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.*** Indemnifying Securityholder and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling Parent may rely upon any claims under this Agreement on behalf such decision, action, failure to act within a designated period of such Company Securityholderstime, (vi) interpreting all terms of this Agreement; (vii) institutingagreement, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actionsconsent, engaging and hiring accountantssettlement, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary resolution or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment instruction of the Representative as being that of each and every such Indemnifying Securityholder and Company Securityholder’s attorney-in-fact revokes . Parent is hereby relieved from any power of attorney heretofore granted that authorized liability to any Indemnifying Securityholder or other Person to represent such Company Securityholder for any acts done by it in accordance with regard to this Agreement and any other agreements such decision, act, consent or documents executed or delivered instruction of the Representative. All expenses, if any, incurred by the Representative in connection with this Agreementthe performance of his or her duties as the Representative will be borne and paid by the Indemnifying Securityholders according to their Holdback Percentages (the “Representative Expenses”). The With respect to any Claims Notice delivered to the Representative is that states a claim under Section 4.3(a)(9) with respect to an individual Indemnifying Securityholder or group of Indemnifying Securityholders, the sole Representative shall be entitled to rely on the directions of such Indemnifying Securityholder or Indemnifying Securityholders, as applicable, with no liability for any acts done in accordance with such direction. Following the termination of the Claim Period, the resolution of all Liability Claims and exclusive representative the satisfaction of all claims made by Indemnified Parties for Losses, the Representative shall have the right to recover Representative Expenses from the remaining Indemnification Holdback Shares prior to any distribution to the Indemnifying Securityholders. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. Notices or communications to or from the Representative shall constitute notice to or from each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Indemnifying Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.
Appears in 1 contract
Representative. (a) Effective upon The Stockholder irrevocably appoints Fidelity National Financial, Inc. to act as the designated representative, agent and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact of the Stockholder with full authority to make all decisions and agent for determinations and to take all actions required or permitted under or relating to the Merger Agreement and the Escrow Agreement on behalf of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection the Stockholder (but not with respect to this Agreement. The Representative shall take , other than Sections 3.5(b) and 4.1(b) hereof) (such actions to be taken by Person, in such capacity, the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby“Representative”), including, without limitation, including (i) accepting service approving any of process the documents required to be delivered by the Stockholder on or after the Company SecurityholdersClosing Date, (ii) executing and delivering this approving or contesting the Closing Statement or the Initial Common Stock Cash Consideration adjustments, as set forth in Article II of the Merger Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which matter provided for in Article II of the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder)Merger Agreement, (iii) receiving or providing notices administering any matter on behalf of the Company Securityholders with respect Stockholder pursuant to the Escrow Agreement, agreeing to the settlement of any matter or Actions arising out of or thereunder and otherwise handling and negotiating any matter relating to this Agreement, or the transactions contemplated herebythereto, (iv) taking all actions and making all filings on behalf of such Company Securityholders with agreeing to any Governmental Authority waiver, consent or other Person necessary to effect amendment under the consummation of the transactions contemplated by this Merger Agreement, (v) agreeing todistributing to the Stockholder any portion of any consideration payable to the Stockholder under the Merger Agreement after the Closing Date, negotiating(vi) sending, entering into settlements receiving and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims reviewing notices under this the Merger Agreement on behalf of such Company Securityholdersthe Stockholder, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; handling any of the matters referred to in Sections 3.5(b) and 4.1(b) hereof on behalf of a Stockholder and (viii) appointing a successor Representative in the event of the resignation or death of the then current Representative. The Stockholder acknowledges that this Section 6.7 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and handling of matters which arise under or in connection with any the Merger Agreement and the Escrow Agreement (but not with respect to this Agreement, other than Sections 3.5(b) and 4.1(b) hereof). All actions taken by the Representative in connection with, or relating to, the subject matter of the foregoing actionsMerger Agreement or the Escrow Agreement (but not with respect to this Agreement, engaging other than Sections 3.5(b) and hiring accountants4.1(b) hereof) that are within the authority conferred upon the Representative pursuant to this Section 6.7 shall be deemed authorized, auditorsapproved, appraisersratified and confirmed by the Stockholder, legal counsel having the same force and other legal and financial experts effect as may if performed pursuant to the direct authorization of the Stockholder. Subject to the terms of the Escrow Agreement, the Representative shall be necessary and appropriate properly entitled, absent gross negligence or bad faith, to discharge indemnification in connection with the Representative’s duties performance by the Representative of its rights and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in pursuant to this Section 6.7 and/or under the judgment Escrow Agreement, which indemnification shall be satisfied solely by having recourse against the Escrow Funds; provided, that, subject to Section 7 of the Escrow Agreement, any such indemnification of the Representative for the accomplishment shall be subject and strictly subordinated to any rights of the foregoing Parent and the other Indemnified Parties against the Escrow Fund pursuant to the Escrow Agreement, with no Escrow Funds to be paid to the Representative until the Parent and the Indemnified Parties have no further rights thereto and such funds are about to be returned to the Holders; provided, further, that to the extent that the Escrow Funds are insufficient to so indemnify the Representative, the Stockholder shall indemnify the Representative for its Pro Rata Portion of such shortfall. The Stockholder agrees that Parent shall be entitled to rely upon, without independent investigation, any act, notice, instruction or contemplated communication from the Representative on behalf of the Stockholder and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the terms of this AgreementRepresentative. The Representative hereby accepts such appointment. The appointment of Stockholder further agrees that Parent shall be entitled to disregard any notices or communications given or made by the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered Stockholder in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed Merger Agreement (but not with respect to actions of Representative pursuant to this Agreement, other than Sections 3.5(b) and 4.1(b) hereof) unless given or made through the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderRepresentative.
Appears in 1 contract
Samples: Stockholder Agreement (Fidelity National Financial, Inc.)
Representative. (a) Effective a)Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company SecurityholdersEquityholders, each Company Securityholder Equityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder Equityholder for purposes of this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder Equityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company SecurityholdersEquityholders, (ii) executing and delivering this Agreement, the Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder Equityholder as compared to other Company Securityholders Equityholders shall require the prior written consent of such Company SecurityholderEquityholder), (iii) receiving or providing notices on behalf of the Company Securityholders Equityholders with respect to any matter or Actions arising out of or relating to this Agreement, the Escrow Agreement or the transactions contemplated herebyhereby or thereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders Equityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Company SecurityholdersEquityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) satisfying from the Escrow Account and the Representative Reserve costs, expenses and/or liabilities incurred by the Representative in its capacity as the Representative and otherwise in accordance with this Agreement and/or the Escrow Agreement, (ix) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and under the Escrow Agreement and (ixx) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company SecurityholderEquityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder Equityholder with regard to this Agreement and the Escrow Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders Equityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Equityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersEquityholders. Each Company Securityholder Equityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderEquityholder.
Appears in 1 contract
Samples: Merger Agreement (AtriCure, Inc.)
Representative. (a) At the Effective upon Time, Fortis Advisors LLC, a Delaware limited liability company, will be constituted and appointed as the Representative. Each Indemnitor, by virtue of the Required Stockholder Approval and his, her its adoption of this Agreement or its acceptance of the consideration Merger Consideration payable under the terms and conditions of this Agreementto such Indemnitor, and without any further act action of any of the Company SecurityholdersIndemnitors or the Company, each Company Securityholder hereby appoints will be deemed to have appointed and constituted the Representative as his, her or its representative, exclusive agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement, the Escrow Agreement and the Representative Engagement Agreement. Without limiting the foregoing, the Representative will be the exclusive agent for and on behalf of such Company Securityholder for purposes of this Agreement the Indemnitors to (i) give and any other agreements receive notices and documents executed communications to or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions from Parent (on behalf of such Company Securityholder as it may deem necessary itself or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iiiIndemnified Person) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, the Escrow Agreement, the Representative Engagement Agreement or any of the other Transactions hereunder or thereunder; (ii) authorize the release (by providing joint written instructions to the Escrow Agent) to Parent or the transactions contemplated herebyIndemnitors of any amounts from the Indemnification Escrow Fund in accordance with the terms of this Agreement and the Escrow Agreement, including with respect to the Closing Balance Sheet and/or the Post-Closing Statement, and legally bind each Indemnitor to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (iii) object to the Closing Balance Sheet and/or the Post-Closing Statement or such claims in accordance with Section 7.7; (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority consent or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and demand arbitration and comply with orders of courts Orders with respect to, and otherwise administering and handling any claims under this Agreement on behalf of the Closing Balance Sheet and/or the Post-Closing Statement or such Company Securityholders, (vi) interpreting all terms of this Agreementclaims; (viiv) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking take all other actions that are either necessary or appropriate in the sole judgment of the Representative in connection with the Representative’s obligations, powers and authority hereunder, under the Escrow Agreement and under the Representative Engagement Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance, and (vi) subject to Section 6.3, execute for and on behalf of each Indemnitor any amendment to this Agreement, the Escrow Agreement, the Representative Engagement Agreement or any exhibit, annex or schedule hereto or thereto (including for the accomplishment purpose of amending addresses or sharing percentages). Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the foregoing or contemplated by Indemnitors, except as expressly provided herein, in the terms Escrow Agreement and in the Representative Engagement Agreement, and for purposes of this Agreement. The Representative hereby accepts such appointment. The appointment clarity, there are no obligations of the Representative as each Company Securityholder’s attorney-in-fact revokes in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. This appointment of agency, this power of attorney heretofore and the immunities and rights to indemnification granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative Group hereunder: (A) are coupled with an interest and will be irrevocable and will not be terminated by any Indemnitor or by operation of Law, whether by the death, incompetence, bankruptcy, liquidation or incapacity of any Indemnitor or the occurrence of any other event, and shall be binding on any successor to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to such Indemnitor, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any change Indemnitor or the Representative will have received any notice thereof, and (B) shall survive the delivery of address an assignment of such Company Securityholderthe whole or any fraction of his, her or its interest in the Indemnification Escrow Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Nerdwallet, Inc.)
Representative. (a) Effective upon and by virtue of the Required Stockholder Holder Approval and his, her or its acceptance and/or delivery of the consideration payable under the terms and conditions Holder Letters of this AgreementTransmittal, and without any further act of any of the Company SecurityholdersHolders, each Company Securityholder hereby appoints the Representative shall be hereby appointed as his, her or its the representative of the Holders and as the attorney-in-fact and agent for and on behalf of such Company Securityholder each Holder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall will take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, including (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder Holder as compared to other Company Securityholders Holders shall require the prior written consent of such Company SecurityholderHolder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (ivii) taking all actions and making all filings on behalf of such Company Securityholders Holders with any Governmental Authority Body or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (viii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company SecurityholdersHolders, (viiv) interpreting all terms of satisfying from the Holdback Shares costs, expenses and/or liabilities incurred by Representative in its capacity as the Representative and otherwise in accordance with this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersHolders. Each Company Securityholder Holder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderHolder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Empeiria Acquisition Corp)
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this AgreementShareholder Approval, and without any further act of any of the Company SecurityholdersShareholders, each Company Securityholder Representative shall be hereby appoints appointed as the Representative representative of the Holders and as his, her or its the attorney-in-fact and agent for and on behalf of such Company Securityholder each Holder for purposes of this Agreement and any other agreements the Escrow Agreement and documents executed or delivered in connection with this Agreement. The Representative shall will take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this the Escrow Agreement and such other actions on behalf of such Company Securityholder Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, including (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, the Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder Holder as compared to other Company Securityholders Holders shall require the prior written consent of such Company SecurityholderHolder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (ivii) taking all actions and making all filings on behalf of such Company Securityholders Holders with any Governmental Authority Body or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (viii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts Orders with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Company SecurityholdersHolders, (viiv) interpreting all terms using the Representative Expense Amount, in its sole discretion, to satisfy costs, expenses and/or liabilities of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) Representative in connection with any of the foregoing actionsmatters related to this Agreement and/or Escrow Agreement as Representative, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersHolders. Each Company Securityholder Holder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderHolder.
Appears in 1 contract
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without Without any further act of any of the Company SecurityholdersStockholders or the other Holders, each Company Securityholder hereby appoints the Representative is hereby appointed as his, her or its the representative of the Holders and as the attorney-in-fact and agent for and on behalf of such Company Securityholder each Holder for purposes of this Agreement Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements and documents executed or delivered in connection with this Agreement. The Representative Agreement and shall take such actions to be taken by the Representative under this Agreement Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyTransactions, including, without limitation, including (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder)consented, (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (ivii) taking all actions and making all filings on behalf of such Company Securityholders Holders with any Governmental Authority Body or other Person necessary to effect the consummation of the transactions contemplated by this AgreementTransactions, (viii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents on behalf of such Company SecurityholdersHolders, (viiv) interpreting all terms of satisfying from the Indemnity Escrow Account and Working Capital Escrow Account costs, expenses and/or Liabilities incurred by the Representative in its capacity as the Representative and otherwise in accordance with this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actionsEscrow Agreement, engaging and hiring accountantsthe Paying Agent Agreement, auditorsthe other Transaction Documents, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents. The Representative hereby accepts such appointment. The appointment of the Representative as each Company SecurityholderHolder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder Holder with regard to this Agreement Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders Holders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the The Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersHolders. Each Company Securityholder Holder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderHolder.
Appears in 1 contract
Samples: Merger Agreement (Health Insurance Innovations, Inc.)
Representative. For purposes of this Escrow Agreement, the UniCAD -------------- Common Stockholders, without any further action on the part of any such UniCAD Common Stockholder, shall be deemed to have consented to and approved: (a) Effective upon and by virtue the use of the Required Stockholder Approval and his, her or its acceptance Escrow Shares as collateral for the indemnification obligations under Section 11.2 of the consideration payable under Plan of Reorganization and in the terms and conditions of manner set forth in this Agreement, and without any further act ; (b) the appointment of any Xxxxxxx Xxxxxxx as the representative of the Company Securityholders, each Company Securityholder hereby appoints UniCAD Common Stockholders (the Representative "Representative") and as his, her or its the attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes each UniCAD Common Stockholder (other than holders of this Agreement Dissenting Shares), and the taking by the Representative of any other agreements and documents executed all actions and the making of any decisions required or delivered in connection with this Agreement. The Representative shall take such actions permitted to be taken by the Representative him or her under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyEscrow Agreement, including, without limitation, the exercise of the power to (i) accepting service authorize delivery to CCT of process on the Company SecurityholdersEscrow Shares in satisfaction of claims by CCT, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, and otherwise administering and handling any claims under this Agreement such claims, (iii) negotiate, execute on behalf of such Company Securityholdersthe UniCAD Common Stockholders, deliver and perform amendments to or modifications of this Escrow Agreement, (viiv) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with resolve any claim made pursuant to Section 11.2 of the foregoing actionsPlan of Reorganization, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking take all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing foregoing; and (c) all of the other terms, conditions and limitations of this Escrow Agreement. Accordingly, the Representative has unlimited authority and power to act on behalf of each UniCAD Common Stockholder with respect to this Escrow Agreement and the disposition, settlement or contemplated other handling of all claims, rights or obligations arising under this Escrow Agreement, so long as all UniCAD Common Stockholders are treated in material respects in the same manner. The UniCAD Common Stockholders will be bound by all actions taken by the Representative in connection with this Escrow Agreement and CCT and the Escrow Agent shall be entitled to rely on any action or decision of the Representative as constituting the actions of the UniCAD Common Stockholders. In performing such functions, the Representative will not be liable to the UniCAD Common Stockholders in the absence of gross negligence or willful misconduct. All actions and notices by the Representative hereunder shall be signed by the Representative. The Representative may resign from such position, effective upon a new Representative being appointed to act as the Representative by the written consent of UniCAD Common Stockholders who beneficially own at least a majority of the Escrow Shares. The UniCAD Common Stockholders must elect a new Representative, and such written consent must be given, within thirty days from the date of the Representative's notice of intended resignation. UniCAD Common Stockholders who beneficially own at least a majority of the Escrow Shares may at any time and from time to time appoint by written consent a new representative to act as the Representative in place of the then-current Representative. The Representative shall not be entitled to receive any compensation or reimbursement of expenses for his or her actions taken with respect to this Escrow Agreement, either from CCT or the Escrow Account, unless and until there are Escrow Shares to be distributed to the UniCAD Common Stockholders on the Escrow Release Date (the "Distributed Shares"). Any out-of- pocket costs and expenses incurred by the Representative in connection with actions taken pursuant to the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Escrow Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall will be bound paid by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available UniCAD Common Stockholders to the Representative in proportion to keep their percentage interests in the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact Escrow Shares set forth on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.Exhibit A.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cooper & Chyan Technology Inc)
Representative. (a) Effective upon and To the fullest extent permitted by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholderslaw, each Company Securityholder Shareholder hereby irrevocably constitutes and appoints the Representative as his, her or its attorneyCharles E. Xxxxxxxx xx xxx xxxxxxxx-in-fact and agent legal and judicial representative (the "Representative"), with full power of substitution, for the purposes of (i) receiving all notices and communications directed to any Shareholder under this Agreement and taking any action (or determining to take no action) with respect thereto as the Representative may deem appropriate, including the settlement or compromise on behalf of such Company Securityholder for purposes any Shareholder of this Agreement any Third Party Claim or Losses, and (ii) executing and delivering on behalf of any other agreements Shareholder all instruments and documents executed of every kind the Representative may deem necessary or advisable to accomplish the foregoing. Each Shareholder hereby ratifies and confirms, as the Shareholder's own act, all that the Representative shall do or cause to be done pursuant to this Agreement. (b) If the Representative resigns, the resigning Representative shall appoint as successor either another Shareholder or a third party reasonably acceptable to Parent (a "Successor Representative"). The resigning Representative's resignation shall not be effective until a Successor Representative shall have agreed in writing to accept such appointment. If the Representative should die or become incapacitated, a Successor Representative shall be appointed within 30 days of the Representative's death or incapacity by the Shareholders that received a majority of Total Consideration. Upon acceptance by a Successor Representative of the Successor Representative's appointment, the appointment shall be final and binding on the Shareholders. (c) Each Shareholder irrevocably agrees that with respect to any Third Party Claim or any claim for indemnification hereunder any service of process, writ, judgment or other notice of legal process shall be deemed and held in every respect to be effectively served upon the Shareholder if delivered by registered, certified or first class mail, postage prepaid to the Representative at such person's address set forth in Section 4.1, whom each Shareholder irrevocably appoints as its authorized agent for service of process. (d) The death or incapacity of any Shareholder shall not terminate the authority and agency of the Representative. (e) Each Shareholder hereby agrees to indemnify the Representative and to hold the Representative harmless against any loss, liability or expense incurred without negligent conduct or bad faith on the part of the Representative and arising out of or in connection with his duties as Representative, including court costs and attorneys' fees and expenses incurred by the Representative in defending against any Third Party Claim or Losses in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.2.4
Appears in 1 contract
Samples: Indemnification Agreement (Electronic Fab Technology Corp)
Representative. Vantage is hereby appointed by the Company (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes execution of this Agreement hereby accepts such appointment) as the representative of the Recipients (the “Representative”), with respect to the taking by the Representative of any and all actions and the making of any other agreements and documents executed decisions required or delivered in connection with this Agreement. The Representative shall take such actions permitted to be taken by the Representative under this Agreement or the Escrow Agreement or EBITDA Shares Escrow Agreement. Should the Representative resign or be unable to serve, a new Representative will be selected jointly by a vote of the Recipients who, at Closing, received a majority of the Merger Shares, whose appointment shall be effective upon execution by such successor of a joinder agreement providing for such successor to become a party to the Escrow Agreement, the EBITDA Shares Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, which case such successor shall have consented for all purposes of this Agreement and the Escrow Agreement and EBITDA Shares Escrow Agreement be the Representative (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent acts taken by the succeeded Representative shall remain valid for purposes of this Agreement and the Escrow Agreement and the EBITDA Shares Escrow Agreement). If such Company Securityholder)Recipients are unable to appoint a Person to serve in the capacity of Representative within 15 days of the date that the former Representative resigned or became unable to serve, (iii) receiving or providing notices a new Representative shall be selected by majority vote of those Persons on behalf Parent’s board of directors who served on the board of directors of the Company Securityholders with respect immediately prior to the Effective Time. The Representative shall not be liable to Recipients for any matter liability, loss, damage, penalty, fine, cost or Actions expense incurred without gross negligence by the Representative while acting in good faith and arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with the acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). From and after the foregoing actionsEffective Time, engaging and hiring accountantsa decision, auditorsact, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary consent or appropriate in the judgment instruction of the Representative shall be final, binding and conclusive and not subject to challenge by any Recipient. Parent and Surviving Corporation are hereby relieved from any liability to any person for the accomplishment any acts done by Representative and any acts done by Parent or Surviving Corporation in accordance with any such decision, act, consent or instruction of the foregoing or contemplated by Representative. Parent, Parent and each of their respective Affiliates shall be entitled to rely upon, and shall be fully protected in relying upon, the terms of this Agreement. The Representative hereby accepts such appointment. The appointment power and authority of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholderwithout independent investigation.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Victory Acquisition Corp)
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this AgreementShareholder Approval, and without any further act of any of the Company SecurityholdersShareholders, each Company Securityholder Representative shall be hereby appoints appointed as the Representative representative of the Shareholders and as his, her or its the attorney-in-fact and agent for and on behalf of such Company Securityholder each Shareholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreementthe Escrow Agreements. The Representative shall will take such actions to be taken by the Representative under this Agreement and any other agreements the Escrow Agreements and documents executed or delivered in connection with this Agreement and such other actions otherwise on behalf of such Company Securityholder Shareholders as it Representative may deem necessary or appropriate in its discretion in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, including (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, the Escrow Agreements and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder Shareholder as compared to other Company Securityholders Shareholders shall require the prior written consent of such Company SecurityholderShareholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (ivii) taking all actions and making all filings on behalf of such Company Securityholders Shareholders with any Governmental Authority Body or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (viii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts Orders with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreements on behalf of such Company Securityholdersthe Shareholders, (viiv) interpreting all terms using the Representative Expense Amount to satisfy costs, expenses and/or liabilities of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) Representative in connection with any of the foregoing actionsmatters related to this Agreement and/or Escrow Agreements as Representative, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this AgreementAgreement or the Escrow Agreements. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Shareholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersShareholders. Each Company Securityholder Shareholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderShareholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Acacia Research Corp)
Representative. (a) Effective upon and by virtue 12.3.5. As an integral component of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this AgreementAgreement and the Merger, the Representative is hereby irrevocably appointed, authorized and without any further act of any empowered as the representative of the Company SecurityholdersEquityholders, each Company Securityholder hereby appoints Blocker Seller and their respective successors and permitted assigns for the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of specified in this Agreement and any other agreements the Escrow Agreement and documents executed or delivered in connection with this Agreement. The Representative shall take such all actions to be taken by the Representative under this Agreement hereunder and thereunder will be binding upon all such Equityholders, Blocker Seller and their respective successors. The Representative may take any other agreements and documents executed or delivered in connection with this Agreement and such other all actions on behalf of such Company Securityholder as which it may deem believes are necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebypurposes for which it serves as the Representative as specified in this Agreement and the Escrow Agreement for and on behalf of the Equityholders and Blocker Seller, including, without limitation, approving or contesting the determination of the Total Equity Value and the Blocker Adjustment (ior any elements thereof) accepting service of process on pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8, consenting to, compromising or settling all claims and matters in connection with such determination or distributions, conducting negotiations with Parent and other applicable counterparties and their agents regarding claims and matters in connection with such determination or distributions, dealing with Parent, the Company SecurityholdersSurviving Entity and its Subsidiaries, (ii) executing and delivering the Escrow Agent, under this Agreement and the Escrow Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representativeapplicable, in its sole discretionconnection with such determination or distributions, shall have consented (provided that any waiver and engaging counsel, accountants or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices representatives on behalf of the Company Securityholders Equityholders and Blocker Seller in connection with respect to any matter or Actions arising out the foregoing matters. Without limiting the generality of or relating to this Agreementthe foregoing, or the transactions contemplated hereby, (iv) taking all actions Representative will have full power and making all filings authority on behalf of such Company Securityholders with any Governmental Authority or other Person necessary the Equityholders and Blocker Seller to effect the consummation interpret all of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements terms and compromises of, complying with orders provisions of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf and the Escrow Agreement in connection with the determination of such Company Securityholders, the Total Equity Value and the Blocker Adjustment (vior any elements thereof) interpreting pursuant to Section 3.7 and all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8 and to consent to any waiver of this Agreement or the Escrow Agreement, or any amendment of the foregoing actionsEscrow Agreement, engaging in each case on behalf of all such Equityholders and hiring accountants, auditors, appraisers, legal counsel Blocker Seller and other legal their respective successors and financial experts as may be necessary and appropriate properly to discharge permitted assigns in connection with the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment determination of the Representative for Total Equity Value and the accomplishment of Blocker Adjustment (or any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8; provided that, notwithstanding the foregoing foregoing, this Agreement may only be amended or contemplated by the terms of this Agreementmodified in accordance with Section 15.2. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.
Appears in 1 contract
Representative. (a) Effective upon and by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this AgreementApproval, and without any further act of any of the Company SecurityholdersStockholders, each Company Securityholder hereby appoints the Representative shall be hereby appointed by the Stockholders as his, her or its the representative of the Stockholders and as the attorney-in-fact and agent for and on behalf of such Company Securityholder each Stockholder for purposes of this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative Agreement and shall take such actions to be taken by the Representative under this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder Stockholders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, including (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, the Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder Stockholder as compared to other Company Securityholders Stockholders shall require the prior written consent of such Company SecurityholderStockholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (ivii) taking all actions and making all filings on behalf of such Company Securityholders Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (viii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Company SecurityholdersStockholders, (viiv) interpreting all terms of satisfying from the Escrow Account costs, expenses and/or liabilities incurred by the Representative in its capacity as the Representative and otherwise in accordance with this Agreement and/or the Escrow Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ixv) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company SecurityholderStockholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder Stockholder with regard to this Agreement and the Escrow Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders Stockholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders Stockholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company SecurityholdersStockholders. Each Company Securityholder Stockholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderStockholder.
Appears in 1 contract
Samples: Merger Agreement (AtriCure, Inc.)
Representative. (a) Effective upon and Each Stockholder, by virtue of the Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions execution of this Agreement, hereby makes, constitutes and without any further act appoints Xxxxxx X. Xxxxxxx (the “Representative”), with full power of any of the Company Securityholderssubstitution and re-substitution, each Company Securityholder hereby appoints the Representative as his, her or its true and lawful attorney-in-fact to execute and deliver each of the Escrow Agreement and EBITDA Shares Escrow Agreement on behalf of the Stockholders (and to execute and deliver all other documentation required thereby) and to represent the interests of the Persons entitled to receive Stockholder Shares and EBITDA Shares as a result of the transactions contemplated hereby for purposes of this Agreement, the Escrow Agreement and EBITDA Shares Escrow Agreement. The Representative shall be the exclusive agent for and on behalf of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, Stockholders to: (i) accepting service of process on give and receive notices and communications to or from KBL and/or the Company Securityholders, (ii) executing respective escrow agents under the Escrow Agreement and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or EBITDA Shares Escrow Agreement relating to this Agreement, the Escrow Agreement, the EBITDA Shares Escrow Agreement or any of the transactions and other matters contemplated herebyhereby or thereby; (ii) authorize deliveries to KBL and/or the Surviving Pubco of Escrow Shares from the escrow fund in satisfaction of claims asserted by KBL and/or the Surviving Pubco (on behalf of itself or any other KBL Indemnitee, including by not objecting to such claims); (iii) object to such claims; (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority consent or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and comply with orders of courts with respect to, and otherwise administering and handling such claims; (v) waive any claims under condition in this Agreement, the Escrow Agreement or the EBITDA Shares Escrow Agreement on behalf of such Company Securityholders, the Stockholders and (vi) interpreting take all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing foregoing, in each case without having to seek or contemplated obtain the consent of any person under any circumstance. Notwithstanding the foregoing, the Representative shall not consent or agree to or negotiate or enter into any settlement and compromise of any claim that includes any admission of guilt, criminal liability or wrong-doing by the terms of this Agreementany Stockholder unless approved in writing in advance by such Stockholder. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is shall be the sole and exclusive representative means of asserting or addressing any of the above and no Stockholder shall have any right to act on its own behalf with respect to any such matters or other matters relating to this Agreement or the transactions contemplated hereby, other than any claim or dispute against the Representative. If the Person serving as the Representative ceases to serve in such capacity, for any reason, those members of the board of directors of the Surviving Pubco who were members of the board of directors of PRWT prior to the Closing shall appoint as successor a Person who was a former director or PRWT or such other Person as such members shall designate. Such Person or successor is intended to be the “Representative” referred to in Article VII hereof, the Escrow Agreement and EBITDA Shares Escrow Agreement. KBL, the Surviving Pubco and each of their respective Affiliates shall be entitled to rely upon, and shall be fully protected in relying upon, the power and authority of the Representative without independent investigation. No bond shall be required of the Representative. The Representative shall receive no fees for his services but shall be entitled to reimbursement for his reasonable out-of-pocket expenses as provided below and in the Escrow Agreement and EBITDA Shares Escrow Agreement. Notices or communications to or from the Representative shall constitute notice to or from each of the Company Securityholders Stockholders. KBL, the Surviving Pubco and each of their respective Affiliates shall have no liability to any of the Stockholders or any other constituencies for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that acts or omissions of the Representative shall use commercially reasonable efforts based on contact information available (including any failure to deliver amounts or shares paid to the Representative on behalf of any of the Stockholders or any other constituencies), or any acts or omissions taken or not taken by any other persons at the direction of the Representative. Any notice or communication given or received by, and any decision, action, failure to keep act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Company Securityholders reasonably informed with respect to actions Representative that is within the scope of Representative pursuant to the Representative's authority granted Representative under this Section 1.12(b) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Stockholders and shall be final, binding and conclusive upon each such Stockholder and the escrow agents under the Escrow Agreement which actions have and the EBITDA Shares Escrow Agreement and KBL and the Surviving Pubco shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a material impact on the amounts payable designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to the Company Securityholdersor by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Stockholder. Each Company Securityholder The Stockholders, jointly and severally, shall promptly provide written notice to indemnify and hold harmless the Representative against any Losses (as defined in Section 7.1(b)) arising out of actions taken or omitted to be taken in his capacity as the Representative (except in the case of gross negligence or willful misconduct by the Representative), including the reasonable costs and expenses of investigation and defense of claims. The Representative shall not be liable to any change of address Stockholders or any of such Company Securityholdertheir respective Affiliates for any decisions made or actions taken by the Representative in good faith and believed by him to be authorized by, or within the rights or powers conferred upon him by, this Agreement, and may consult with counsel of his own choice.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (KBL Healthcare Acquisition Corp III)
Representative. (a) Effective upon and by virtue The Representative shall serve as representative of the Required Stockholder Approval Shareholders (with respect to their interest in the Escrow Amounts) with full power and hisauthority to take all actions under this Agreement and the Escrow Agreement relating to claims for indemnification asserted by any Parent Indemnified Party hereunder. Such power and authority shall include, her without limitation, the power and authority (1) to negotiate, settle, compromise and otherwise handle all claims for indemnification made by any Parent Indemnified Party pursuant to Article 8 hereof, (2) to direct the payment of claims from the Escrow Fund and/or the 280G Escrow Fund and to use the Shareholders’ Representative Amount to do so as determined by the Representative, and (3) to do each and every act and exercise any and all rights which the Representative is permitted or its acceptance of required to do or exercise under this Agreement and the consideration payable Escrow Agreement. The Shareholders will be bound by all actions taken by the Representative in connection with claims for indemnification asserted by Parent Indemnified Parties under the terms and conditions of this Agreement, and without Parent shall be entitled to rely on any further notice or communication to or by, or decision, action, failure to act within a designated period of any time, agreement, consent, settlement, resolution or instruction of, the Representative. Without limiting the generality of the Company Securityholdersforegoing, each Company Securityholder hereby appoints decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative as his, her or its attorney-in-fact and agent for and on behalf will constitute a decision of such Company Securityholder for purposes of this Agreement and any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf all of the Company Securityholders Shareholders with respect to any matter or Actions arising out of or relating to this Agreement, or their interest in the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect toEscrow Amounts, and otherwise administering will be final, binding and handling conclusive upon each Shareholder, and Parent may rely upon any claims under this Agreement on behalf such decision, action, failure to act within a designated period of such Company Securityholderstime, (vi) interpreting all terms of this Agreement; (vii) institutingagreement, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actionsconsent, engaging and hiring accountantssettlement, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary resolution or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment instruction of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted being that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each and every Shareholder. Parent and the Escrow Agent are hereby relieved from any liability to any Shareholder for any acts done by it in accordance with such decision, act, consent or instruction of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderRepresentative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chart Industries Inc)
Representative. (a) Effective upon For purposes of this Agreement and the Escrow Agreement, each Company Securityholder shall, without any further action on the part of any such Company Securityholder, be deemed (by virtue of the Required Stockholder Approval adoption and his, her or its acceptance approval of this Agreement and approval of the consideration payable under Merger) to have consented and shall agree in connection with the terms execution and conditions of this Agreement, and without any further act of any delivery of the Letter of Transmittal at the Closing to the appointment of Xxxxxx Xxxxxxxx as the representative of such Company SecurityholdersSecurityholder, each Company Securityholder hereby appoints as the Representative as his, her or its attorney-in-fact and agent for and on behalf of each such Company Securityholder for purposes Securityholder, and the taking by the Representative of this Agreement any and all actions and the making of any other agreements and documents executed decisions required or delivered in connection with this Agreement. The Representative shall take such actions permitted to be taken by the Representative them under or contemplated by this Agreement and any the other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf contemplated hereby, including the exercise of such Company Securityholder as it may deem necessary or appropriate in connection with or the power to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on execute this Agreement, the Company SecurityholdersEscrow Agreement and other Transaction Documents, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) executing and delivering this Agreementauthorize delivery to Buyer of the Escrow Funds or the Representative Amount, and or any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representativeportion thereof, in its sole discretion, shall have consented (satisfaction payment obligations set forth in this Agreement or as provided that any waiver or amendment that shall adversely and disproportionately affect in the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder)Escrow Agreement, (iii) receiving or providing notices on behalf agree to, negotiate, enter into settlements and compromises of the Company Securityholders and comply with orders of courts and awards of arbitrators with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated herebysuch claims, (iv) taking all actions and making all filings on behalf of such Company Securityholders with resolve any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreementclaims, (v) agreeing to, negotiating, entering into settlements receive and compromises of, complying with orders of courts with respect toforward notices and communications pursuant to this Agreement and the Escrow Agreement, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting take all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be actions necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by and all of the terms other terms, conditions and limitations of this Agreement. The Representative hereby accepts such appointment. The appointment of , the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Escrow Agreement and any other agreements or documents executed or delivered in connection with this AgreementTransaction Documents. Xxxxxx Xxxxxxxx hereby accepts his appointment as the Representative. The Representative is authorized by each Company Securityholder by virtue of the sole adoption and exclusive representative approval of each this Agreement and approval of the Merger to act on its behalf as required hereunder and under the Escrow Agreement. The Company Securityholders will be bound by all actions taken and documents executed by the Representative in accordance with the terms hereof, and Buyer and its Affiliates will be entitled to rely on any action or decision of the Representative. At any time, the Company Securityholders for any purpose provided for representing a majority of the Pro Rata Portion can appoint a new Representative by this Agreement. Representative shall be bound written consent by sending notice and a copy of the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the duly executed written consent appointing such new Representative to keep Buyer and, if applicable, the Company Securityholders reasonably informed with respect to actions Escrow Agent. Such appointment will be effective upon the later of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on date indicated in the amounts payable to consent or the Company Securityholders. Each Company Securityholder shall promptly provide written notice to date such consent is received by Buyer and, if applicable, the Representative of any change of address of such Company SecurityholderEscrow Agent.
Appears in 1 contract
Representative. The Holders irrevocably appoint Stone Point Capital LLC to act as the designated representative, agent and attorney-in-fact of such Holders with full authority to make all decisions and determinations and to take all actions required or permitted under or relating to this Agreement and the Escrow Agreement on behalf of such Holders (athe committee, in such capacity, the "Representative"), including (i) Effective upon and by virtue approving any of the Required Stockholder Approval and hisdocuments required to be delivered by such Holders on or after the Closing Date, her (ii) approving or its acceptance of contesting the consideration payable under Closing Statement, and/or the terms and conditions Initial Merger Consideration adjustments, as set forth in Article III of this Agreement, and without any further act other matter provided for in Article III of this Agreement, (iii) administering any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and indemnification matter on behalf of the Holders, agreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, (iv) agreeing to any waiver, consent or amendment under or to this Agreement, provided that no such Company Securityholder for purposes waiver, consent or amendment shall adversely affect the allocation of any consideration hereunder to any Holder who does not expressly consent thereto in writing, (v) distributing to the Holders any portion of any consideration hereunder payable to the Holders after the Closing Date, (vi) sending, receiving and reviewing notices under this Agreement on behalf of the Holders and any other agreements (vii) appointing a successor Representative in the event of the resignation or death of the then current Representative. Each Holder acknowledges that this Section 11.12 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and documents executed handling of all matters which arise under or delivered in connection with this Agreement. The Representative shall take such All actions to be taken by the Representative under in connection with, or relating to, the subject matter of this Agreement or the Escrow Agreement that are within the authority conferred upon the Representative pursuant to this Section 11.12 shall be deemed authorized, approved, ratified and any other agreements confirmed by the Holders, having the same force and documents executed effect as if performed pursuant to the direct authorization of such Holders. Subject to the terms of the Escrow Agreement, the Representative shall be entitled, absent gross negligence or delivered bad faith, to indemnification in connection with the performance by the Representative of its rights and obligations pursuant to this Agreement Section 11.12 and/or under the Escrow Agreement, which indemnification shall be satisfied solely by having recourse against the Escrow Funds; provided that, subject to Section 7 of the Escrow Agreement, any such indemnification of the Representative shall be subject and strictly subordinated to any rights of the Parent and the other Indemnified Parties against the Escrow Fund pursuant to the Escrow Agreement, with no Escrow Funds to be paid to the Representative until the Parent and the Indemnified Parties have no further rights thereto and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or funds are about to consummate be returned to the transactions contemplated hereby or thereby, includingHolders. The Parent shall be entitled to rely upon, without limitationindependent investigation, (i) accepting service of process on any act, notice, instruction or communication from the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices Representative on behalf of the Company Securityholders with respect to Holders and shall not be liable in any matter manner whatsoever for any action taken or Actions arising out of not taken in reliance upon the actions taken or relating to this Agreement, not taken or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority communications or other Person necessary to effect the consummation of the transactions contemplated writings given or executed by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative Parent shall be bound entitled to disregard any notices or communications given or made by any Holder unless given or made through the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderRepresentative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fidelity National Financial Inc /De/)
Representative. The Holders have separately irrevocably appointed Fidelity National Financial, Inc. to act as the designated representative, agent and attorney-in-fact of such Holders with full authority to make all decisions and determinations and to take all actions required or permitted under or relating to this Agreement and the Escrow Agreement on behalf of such Holders (aFidelity National Financial, Inc., in such capacity, the “Representative”), including (i) Effective upon and by virtue approving any of the Required Stockholder Approval and hisdocuments required to be delivered by such Holders on or after the Closing Date, her (ii) approving or its acceptance of contesting the consideration payable under Closing Statement and/or the terms and conditions Initial Merger Consideration adjustments as set forth in Article II of this Agreement, and without any further act other matter provided for in Article II of this Agreement, (iii) administering any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and indemnification matter on behalf of the Holders, agreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, (iv) agreeing to any waiver, consent or amendment under or to this Agreement, provided that no such Company Securityholder for purposes waiver, consent or amendment shall adversely affect the allocation of any consideration hereunder to any Holder who does not expressly consent thereto in writing, (v) distributing to the Holders any portion of any consideration hereunder payable to the Holders after the Closing Date, (vi) sending, receiving and reviewing notices under this Agreement on behalf of the Holders and any other agreements (vii) appointing a successor Representative in the event of the resignation or death of the then current Representative. Each Holder has acknowledged that this Section 10.12 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and documents executed handling of all matters which arise under or delivered in connection with this Agreement. The Representative shall take such All actions to be taken by the Representative under in connection with, or relating to, the subject matter of this Agreement or the Escrow Agreement that are within the authority conferred upon the Representative pursuant to this Section 10.12 shall be deemed authorized, approved, ratified and any other agreements confirmed by the Holders, having the same force and documents executed effect as if performed pursuant to the direct authorization of such Holders. Subject to the terms of the Escrow Agreement, the Representative shall be entitled, absent gross negligence or delivered bad faith, to indemnification in connection with the performance by the Representative of its rights and obligations pursuant to this Agreement Section 10.12 and under the Escrow Agreement, which indemnification shall be satisfied solely by having recourse against the Escrow Funds; provided that, subject to Section 7 of the Escrow Agreement, any such indemnification of the Representative shall be subject and strictly subordinated to any rights of the Parent and the other Indemnified Parties against the Escrow Fund pursuant to the Escrow Agreement, with no Escrow Funds to be paid to the Representative until the Parent and the Indemnified Parties have no further rights thereto and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or funds are about to consummate be returned to the transactions contemplated hereby or thereby, includingHolders. The Parent shall be entitled to rely upon, without limitationindependent investigation, (i) accepting service of process on any act, notice, instruction or communication from the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices Representative on behalf of the Company Securityholders with respect Holders and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. The Parent shall be entitled to disregard any matter notices or Actions arising out of communications given or relating to this Agreement, made by any Holder unless given or made through the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms Representative. For purposes of this Agreement; (vii) institutingSection 10.12, prosecuting and/or defending lawsuits; (viii) in connection with any Holder shall refer to all holders of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company SecurityholderStock.
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Samples: Agreement and Plan of Merger (Fidelity National Financial, Inc.)
