Seller Representative. (a) The SGA Parties hereby (i) irrevocably nominate, constitute and appoint the Seller Representative as the agent and true and lawful attorney-in-fact of the SGA Parties in connection with the matters set forth in this Section 2.07, with full power of substitution, to act in the name place and stead of the Sellers for purposes of executing, delivering, acknowledging, certifying, filing, modifying, or waiving any and all documents and taking any actions that the Seller Representative may, in its reasonable discretion, determine to be necessary, desirable or appropriate in connection with or arising out of this Section 2.07 and its performance of its duties under this Section 2.07 and (ii) grant the Seller Representative such powers and authority as are necessary to carry out the functions assigned to it under this Section 2.07 (each such functions, an “Authorized Action”). By its execution hereof, the Seller Representative agrees to serve in such capacity; provided, however, that the Seller Representative shall have no obligation to act on behalf of the Sellers except as expressly provided herein. A SGA Party will be deemed a party or a signatory to any document, instrument, certificate, or agreement that the Seller Representative signs on behalf of such SGA Party in accordance with this Section 2.07. Each of the SGA Parties acknowledges and agrees that actions of the Seller Representative under this Agreement shall require the vote or consent (as applicable) of each Person constituting the Seller Representative. (b) Without limiting the generality of Section 2.07(a), the Seller Representative shall have the full power, authority, and discretion to: (i) give and receive all notices required or permitted to be given pursuant to or in connection with Section 2.07, Section 6.01, Section 6.02 or Article VIII; (ii) take or refrain from taking any actions on behalf of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02; (iii) take the actions set forth in Section 6.02 (iv) assist the SGA Parties in performing their obligations under Section 5.05; (v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 and (B) of the True Up Amount pursuant to Section 2.06; and (vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith. (c) The Seller Representative shall not have the authority to: (i) amend, supplement or waive this Agreement on behalf of any SGA Party; or (ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with each Seller’s Purchase Price Percentage. (d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Purchaser relating to the defense or settlement of any claims for which the Sellers may be required to indemnify, or pay to, Purchaser pursuant to Article VIII or Section 6.02, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest, or otherwise contest the same. (e) The Purchaser agrees that the Seller Representative, acting in its capacity as the Seller Representative, shall have no liability to the Purchaser for any Authorized Action, except that the Seller Representative shall not be relieved of liability to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or gross negligence by the Seller Representative. The Seller Representative, acting in its capacity as the Seller Representative, shall not have any liability to the Purchaser for any breach under this Agreement or any Ancillary Agreement by any Seller. (f) To the maximum extent permitted by applicable Law, each Seller (on a several and not joint basis and in proportion to each Seller’s Purchase Price Percentage), hereby agrees to indemnify and hold harmless the Seller Representative against all Losses resulting from, arising out of, or incurred by the Seller Representative (in its capacity as such) in connection with any action, suit or proceeding to which the Seller Representative is made a party by reason of the fact it is or was acting as the Seller Representative of any Seller pursuant to the terms of this Agreement. The Seller Representative shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Seller Representative shall not have a fiduciary relationship in respect of the SGA Companies. The Seller Representative shall not be liable to any Seller for any action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Seller Representative shall not be relieved of any liability imposed by law for fraud or for gross negligence. (g) The Sellers each agree, in addition to the foregoing, that: (i) The provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any SGA Party may have in connection with the transactions contemplated by this Agreement. (ii) The provisions of this Section 2.07 shall be binding upon the successors and assigns, heirs, legatees, personal representatives of each SGA Party, and any references in this Agreement to a SGA Party shall mean and include the successors to the rights of the SGA Party hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, or otherwise.
Appears in 1 contract
Sources: Securities Purchase Agreement (Virtus Investment Partners, Inc.)
Seller Representative. (a) The SGA Parties hereby (i) irrevocably nominateAs of the date hereof, constitute and appoint the Seller Representative as the agent is hereby constituted, appointed and true and lawful attorney-in-fact of the SGA Parties in connection with the matters set forth in this Section 2.07empowered to act, with full power of substitution, as a representative by and for the benefit of holders of Units, as the exclusive agent and attorney-in-fact to act on behalf of each holder of Units in connection with, and to facilitate the name place consummation of, the Transaction. The power and stead authority of the Sellers Seller Representative shall include the power and authority: (i) to consummate the Transaction on behalf of the holders of Units, (ii) to receive, give receipt of and disburse any funds received hereunder on behalf of or to each holder of Units, (iii) to hold back from disbursement to all of the holders of Units collectively any such funds to the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law or may be required for purposes future expenses or obligations, (iv) to execute and deliver on behalf of executingeach holder of Units all documents contemplated herein, deliveringany amendment or waiver hereto, acknowledgingand any consents, certifyingin each case, filingwith such modifications or changes as to which the Seller Representative, modifyingin its sole discretion, or waiving determines is desirable, (v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, powers, letters and other writings, and, in general, to do any and all documents things and taking to take any actions and all action that the Seller Representative mayRepresentative, in its reasonable sole and absolute discretion, determine to be necessary, desirable may consider necessary or appropriate proper or convenient in connection with or to consummate the Transaction, (vi) to enforce and protect the rights and interests of the holders of Units and to enforce and protect the rights and interest of the Seller Representative arising out of or under or in any manner relating to this Section 2.07 Agreement and its performance the Ancillary Agreements, (vii) to refrain from enforcing any right of its duties under this Section 2.07 and (ii) grant the holders of Units or any of them or the Seller Representative arising out of or under or in any manner relating to this Agreement and the Ancillary Agreements; provided, however, that no such powers and authority failure to act on the part of the Seller Representative, except as are necessary to carry out otherwise provided in this Agreement or in the functions assigned to it under this Section 2.07 (each Ancillary Agreements, shall be deemed a waiver of any such functions, an “Authorized Action”). By its execution hereof, right or interest by the Seller Representative agrees or by such holders of Units unless such waiver is in writing signed by the waiving party or by the Seller Representative, (viii) to serve negotiate, settle, compromise and otherwise handle all disputes with Parent, Merger Sub, or any of their respective Representatives under this Agreement, including disputes regarding any adjustment pursuant to Section 3.06, (ix) to give and receive notices on behalf of the holders of Units and to provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in such capacityaccordance with this Agreement and the Escrow Agreement, and (x) to do each and every act and exercise any and all rights which the holders of Units are permitted or required to do or exercise under this Agreement; provided, however, that the Seller Representative shall have no obligation to act on behalf of the Sellers except as expressly provided hereinholders of Units. A SGA Party will be deemed a party or a signatory The holders of Units, by accepting the consideration payable to any documentthem hereunder, instrument, certificate, or agreement that irrevocably grant unto the Seller Representative signs on behalf as said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or required to be done in connection with the Transaction as fully to all intents and purposes as the holders of such SGA Party Units might or could do in accordance with person and acknowledge and agree to the terms and provisions of this Section 2.0710.09. Each Such agency and proxy are coupled with an interest, and are therefore irrevocable without the consent of the SGA Parties acknowledges Seller Representative, and agrees that actions survive the death, incompetency, bankruptcy or liquidation of any holder of Units and the consummation of the Transaction. All actions, decisions and instructions of the Seller Representative under taken, made or given pursuant to the authority granted to the Seller Representative pursuant to this Section 10.09 shall be conclusive and binding upon each holder of Units, and no such holder shall have the right to object to, dissent from, protest or otherwise contest the same. The terms and conditions of this Agreement shall require are hereby made, and are hereby acknowledged to be, dependent on the vote determinations and actions that are contemplated or consent (as applicable) of each Person constituting permitted to be made by the Seller RepresentativeRepresentative pursuant to this Section 10.09, and the rights of all holders of Units shall be qualified by and dependent upon such determinations and actions, irrespective of whether the Seller Representative is acting as an agent or power of attorney of such holder of Units.
(b) Without limiting the generality All decisions, actions, consents and instructions of Section 2.07(a), the Seller Representative shall have the full power, authority, and discretion to:
(i) give and receive all notices required or permitted authorized to be made, taken or given pursuant to or in connection with Section 2.07, Section 6.01, Section 6.02 or Article VIII;
(ii10.09(a) take or refrain from taking any actions on behalf of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02;
(iii) take the actions set forth in Section 6.02
(iv) assist the SGA Parties in performing their obligations under Section 5.05;
(v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 and (B) of the True Up Amount pursuant to Section 2.06; and
(vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith.
(c) The Seller Representative shall not have the authority to:
(i) amend, supplement or waive this Agreement on behalf of any SGA Party; or
(ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with each Seller’s Purchase Price Percentage.
(d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Purchaser relating to the defense or settlement of any claims for which the Sellers may be required to indemnify, or pay to, Purchaser pursuant to Article VIII or Section 6.02, shall be final and binding upon all the holders of the SellersUnits, and no Seller such Person shall have the any right to object, dissent, protest, protest or otherwise contest the same.
(e) The Purchaser agrees that . Neither the Seller Representative, acting in its capacity as the Seller Representative, shall have no liability to the Purchaser for Representative nor any Authorized Action, except that agent employed by the Seller Representative shall not be relieved of incur any liability to any holder of Units relating to the extent that such Authorized Action is found by a final order performance of a court of competent jurisdiction to have constituted fraud its duties as authorized hereunder except for actions or omissions constituting willful misconduct or gross negligence by the Seller Representative. The Seller Representative, acting in its capacity as the Seller Representative, shall not have any liability to the Purchaser for any breach under this Agreement or any Ancillary Agreement by any Seller.
(f) To the maximum extent permitted by applicable Law, each Seller (on a several and not joint basis and in proportion to each Seller’s Purchase Price Percentage), hereby agrees to indemnify and hold harmless of the Seller Representative against all Losses resulting from, arising out of, or incurred by the Seller Representative (in its capacity as such) in connection with any action, suit or proceeding to which the Seller Representative is made a party by reason of the fact it is or was acting as the Seller Representative of any Seller pursuant to the terms of this Agreement. The Seller Representative shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Sellertherewith. The Seller Representative shall not have by reason of this Agreement a fiduciary relationship or other special relationship with any holder of Units, except in respect of amounts actually received on behalf of such Person. The relationship created between the SGA CompaniesSeller Representative and any holder of Units shall not be construed as a joint venture or any form of partnership for purposes of U.S. federal or state law, including federal or state Tax purposes. The Seller Representative shall not be liable required to make any Seller for any action taken inquiry concerning either the performance or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Seller Representative shall not be relieved observance of any liability imposed by law for fraud of the terms, provisions or for gross negligence.
(g) The Sellers each agree, in addition to the foregoing, that:
(i) The provisions conditions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any SGA Party may have in connection with the transactions contemplated by this Agreement.
(iic) The provisions holders of Units agree, severally (and not jointly and severally) based on their pro rata share of the consideration received hereunder, to indemnify the Seller Representative for, and to hold the Seller Representative harmless against, any Loss incurred on the part of the Seller Representative, arising out of or in connection with the Seller Representative’s carrying out its duties under this Agreement, including (x) amounts paid by the Seller Representative pursuant to Section 2.07 3.06(d)(ii)(B)(2), Section 7.11 or Section 7.14 and (y) costs and expenses of successfully defending the Seller Representative against any claim of liability with respect thereto, other than Losses resulting from the Seller Representative’s willful misconduct or gross negligence. The Seller Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel.
(d) Each of Parent, Merger Sub and the Company acknowledges that the Seller Representative is a party to this Agreement solely for purposes of serving as the “Seller Representative” hereunder and no claim shall be binding upon brought by or on behalf of Parent, Merger Sub the successors Company, any Company Subsidiary or, after the Effective Time, the Surviving Company, against the Seller Representative with respect to this Agreement or the Transaction or any certificate, opinion, instrument or other document delivered hereunder except with respect to matters where performance by the Seller Representative is expressly provided for herein (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” shall not be deemed to require performance by, or be an agreement of, the Seller Representative unless performance by the Seller Representative is expressly provided for in such covenant or the Seller Representative expressly so agrees in writing).
(e) The Seller Representative shall be entitled to be reimbursed by the holders of Units proportionately in accordance with each such Person’s pro rata share of the consideration received hereunder for any fees and assigns, heirs, legatees, personal representatives of each SGA Partyexpenses incurred by the Seller Representative carrying out its duties under this Agreement, and any references in this Agreement the Seller Representative shall be entitled to a SGA Party shall mean and include deduct such amounts from the successors consideration payable to the rights holders of the SGA Party Units hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Fortress Transportation & Infrastructure Investors LLC)
Seller Representative. (a) The SGA Parties hereby (i) By virtue of the adoption and approval of this Agreement, each Seller shall be deemed to have irrevocably nominateagreed that as of the date hereof, constitute and appoint the Seller Representative as the agent is hereby constituted, appointed and true and lawful attorney-in-fact of the SGA Parties in connection with the matters set forth in this Section 2.07empowered to act, with full power of substitution, as a representative by and for the benefit of Sellers, as the exclusive agent and attorney-in-fact to act on behalf of each Seller in connection with, and to facilitate the name place consummation of, the Transactions, and stead the power and authority of the Seller Representative shall include the power and authority (i) to consummate ACTIVE 274341277 the Transactions on behalf of the Sellers, (ii) to pay each Seller’s expenses (whether before, on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to the extent applicable, to receive, give receipt of and disburse any funds received hereunder on behalf of or to each Seller, (iv) to hold back from disbursement to all of the Sellers collectively any such funds to the extent Seller Representative reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law or may be required for purposes future expenses or obligations, (v) to execute and deliver on behalf of executingeach Seller all documents contemplated herein, deliveringany amendment or waiver hereto, acknowledgingand any consents, certifyingin each case, filingwith such modifications or changes as to which the Seller Representative, modifyingin its sole discretion, or waiving determines is desirable, (vi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all documents things and taking to take any actions and all action that the Seller Representative mayRepresentative, in its reasonable sole and absolute discretion, determine to be necessary, desirable may consider necessary or appropriate proper or convenient in connection with or arising out of this Section 2.07 and its performance of its duties under this Section 2.07 and (ii) grant the Seller Representative such powers and authority as are necessary to carry out the functions assigned Transactions, (vii) to it under this Section 2.07 (each such functions, an “Authorized Action”). By its execution hereof, enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interest of the Seller Representative agrees arising out of or under or in any manner relating to serve this Agreement and the Related Documents, (viii) to refrain from enforcing any right of Sellers or any of them or the Seller Representative arising out of, under or in any manner relating to this Agreement and Related Documents; provided, however, that no such capacityfailure to act on the part of the Seller Representative, except as otherwise provided in this Agreement or in the Related Documents, shall be deemed a waiver of any such right or interest by the Seller Representative or by such Sellers unless such waiver is in writing signed by the waiving party or by the Seller Representative, (ix) to negotiate, settle, compromise and otherwise handle all disputes with Purchaser or any other Purchaser Indemnified Party under this Agreement, including disputes regarding any adjustment pursuant to Section 2.12 and any Indemnification Claims made by any Purchaser Indemnified Party, (x) to give and receive notices on behalf of the Sellers, including any notice of an indemnification claim for which indemnification is sought by the Sellers pursuant to Article 9 and to provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in accordance with this Agreement and (xi) to do each and every act and exercise any and all rights which the Sellers are permitted or required to do or exercise under this Agreement; provided, however, that the Seller Representative shall have no obligation to act on behalf of the Sellers except as expressly provided hereinSellers. A SGA Party will be deemed a party or a signatory The Sellers, by accepting the consideration payable to any documentthem hereunder, instrument, certificate, or agreement that irrevocably grant unto the Seller Representative signs on behalf of such SGA Party as said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or required to be done in accordance connection with this Section 2.07the Transactions as fully to all intents and purposes as the Sellers might or could do. Each Such agency and proxy are coupled with an interest, and are therefore irrevocable without the consent of the SGA Parties acknowledges Seller Representative, and agrees that actions survive the death, incompetency, bankruptcy or liquidation of any Seller and the consummation of the Transactions. All actions, decisions and instructions of the Seller Representative under this Agreement shall require taken, made or given pursuant to the vote or consent (as applicable) of each Person constituting the Seller Representative.
(b) Without limiting the generality of Section 2.07(a), authority granted to the Seller Representative shall have the full power, authority, and discretion to:
(i) give and receive all notices required or permitted to be given pursuant to or in connection with this Section 2.07, Section 6.01, Section 6.02 or Article VIII;
(ii) take or refrain from taking any actions on behalf of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02;
(iii) take the actions set forth in Section 6.02
(iv) assist the SGA Parties in performing their obligations under Section 5.05;
(v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 10.1 shall be conclusive and (B) of the True Up Amount pursuant to Section 2.06; and
(vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith.
(c) The Seller Representative shall not have the authority to:
(i) amend, supplement or waive this Agreement on behalf of any SGA Party; or
(ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with binding upon each Seller’s Purchase Price Percentage.
(d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Purchaser relating to the defense or settlement of any claims for which the Sellers may be required to indemnify, or pay to, Purchaser pursuant to Article VIII or Section 6.02, shall be binding upon all of the Sellers, and no Seller shall have the right to objectobject to, dissentdissent from, protest, protest or otherwise contest the same. The terms and conditions of this Agreement are hereby made, and are hereby acknowledged to be, dependent on the determinations and actions that are contemplated or permitted to be made by the Seller Representative pursuant to this Section 10.1, and the rights of all Sellers shall be qualified by and dependent upon such determinations and actions, irrespective of whether the Seller Representative is acting as an agent or power of attorney of such Seller. All actions, ACTIVE 274341277 decisions and instructions of Seller Representative shall be deemed to be facts ascertainable outside this Agreement pursuant to Section 251(b) of the DGCL or under other applicable Law.
(eb) The Purchaser agrees that All decisions, actions, consents and instructions of the Seller RepresentativeRepresentative authorized to be made, acting in its capacity as taken or given pursuant to Section 10.1(a) shall be final and binding upon all the Sellers, and no such Person shall have any right to object, dissent, protest or otherwise contest the same, except for the Willful Breach or gross negligence of the Seller Representative, Representative in connection therewith. Neither the Seller Representative nor any agent employed by the Seller Representative shall have no incur any liability to any Seller relating to the Purchaser for any Authorized Actionperformance of its duties as authorized hereunder or the failure to act, except for actions or omissions constituting Willful Breach or gross negligence of the Seller Representative in connection therewith. The Seller Representative shall at all times be entitled to rely on any directions received from the majority (based on Pro Rata Share) of Sellers; provided, however, that the Seller Representative shall not be relieved of liability required to the extent that follow any such Authorized Action is found by a final order of a court of competent jurisdiction direction and shall be under no obligation to have constituted fraud or gross negligence by the Seller Representative. The Seller Representative, acting take any action in its capacity as the Seller Representative, shall not have Representative based upon any liability to the Purchaser for any breach under this Agreement or any Ancillary Agreement by any Seller.
(f) To the maximum extent permitted by applicable Law, each Seller (on a several and not joint basis and in proportion to each Seller’s Purchase Price Percentage), hereby agrees to indemnify and hold harmless the Seller Representative against all Losses resulting from, arising out of, or incurred by the Seller Representative (in its capacity as such) in connection with any action, suit or proceeding to which the Seller Representative is made a party by reason of the fact it is or was acting as the Seller Representative of any Seller pursuant to the terms of this Agreementsuch direction. The Seller Representative shall not have, have by reason of this Agreement, Agreement a fiduciary relationship in respect of or other special relationship with any Seller, except in respect of amounts actually received on behalf of such SellerPerson. The relationship created between the Seller Representative and any Seller shall not have be construed as a fiduciary relationship in respect joint venture or any form of the SGA Companiespartnership for purposes of U.S. federal or state law, including federal or state Tax purposes. The Seller Representative shall not be liable required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(c) The Sellers shall be bound by all actions taken and documents executed by the Seller Representative in connection with this Agreement, the Company Documents, and the Escrow Agreement, and Purchaser and the other Purchaser Indemnified Parties shall be entitled to rely on any action or decision of the Seller Representative (and, for the avoidance of doubt, the Sellers shall be responsible to Purchaser and the other Purchaser Indemnified Parties severally (and not jointly and severally) proportionately in accordance with their Pro Rata Shares for any action or inaction of the Seller Representative in its capacity as such under this Agreement, any Company Document, or the Escrow Agreement as if the same were taken or not taken by the Sellers under this Agreement, such Company Document, or the Escrow Agreement). Notices or communications to or from the Seller Representative shall constitute notice to or from each of the Sellers. The Sellers assign to the Seller Representative the right to pursue claims or other causes of action that may arise in the Sellers’ favor in connection with the Transactions.
(d) In the event that the Seller Representative becomes unable to perform the Seller Representative’s responsibilities or resigns from such position, the Sellers shall, within 10 Business Days of such resignation, removal, or vacancy, select another representative to fill such vacancy and such substituted representative shall (i) be deemed to be the Seller Representative for all purposes of this Agreement and (ii) exercise the rights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Seller Representative.
(e) The Sellers agree, severally (and not jointly and severally) based on their Pro Rata Share, to indemnify the Seller Representative for, and to hold the Seller Representative harmless against, any Loss incurred without Willful Breach or gross negligence on the part of the Seller Representative, arising out of or in connection with the Seller Representative’s carrying out ACTIVE 274341277 its duties under this Section 10.1, including costs and expenses of successfully defending the Seller Representative against any claim of liability with respect thereto. The Seller Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or omitted and suffered by it in good faith and in accordance with the opinion of such counsel. The indemnity obligations of this Section 10.1(e) shall survive the resignation, replacement or any agent employed by it hereunder removal of the Seller Representative or under any the termination of this Agreement pursuant to Article 8.
(f) Each of Purchaser (on its own behalf and on behalf of the other document entered into in connection herewithPurchaser Indemnified Parties), except Merger Sub and the Company acknowledges that the Seller Representative is a party to this Agreement solely for purposes of serving as the “Seller Representative” hereunder and no claim shall be brought by or on behalf of Purchaser or any other Purchaser Indemnified Parties or, after the Effective Time, the Surviving Company or its Subsidiaries, against the Seller Representative with respect to this Agreement or the agreements or Transactions or any certificate, opinion, instrument or other document delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” shall not be relieved deemed to require performance by, or be an agreement of, the Seller Representative unless performance by the Seller Representative is expressly provided for in such covenant or the Seller Representative expressly so agrees in writing, but the Seller Representative shall receive the benefit of any liability imposed by law for fraud provision of the “parties” or for gross negligence“each of the parties” including with respect to the miscellaneous provisions set forth in this Article 10).
(g) The Sellers each agreeAt the Effective Time, in addition Purchaser shall deliver to the foregoingSeller Representative the Seller Representative Expense Fund, that:
(i) The provisions of this Section 2.07 are independent to be held in trust to cover and severablereimburse the fees, are irrevocable expenses and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any SGA Party may have other monetary obligations incurred by the Seller Representative in connection with the transactions contemplated carrying out by this Agreement.
(ii) The provisions the Seller Representative of its duties under this Section 2.07 10.1. Any balance of the Seller Representative Expense Fund not incurred for such purposes shall be binding upon returned to the successors Sellers in accordance with their respective Pro Rata Share. With respect to the Tendering Stockholders, the Seller Representative shall pay such Seller the portion of the Seller Representative Expense Fund attributable to such Seller with respect to the Pro Rata Share of such Seller, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Seller’s Letter of Transmittal. With respect to Tendering Optionholders, the Seller Representative shall pay the aggregate amount, with respect to the Pro Rata Share of such Optionholders, to the Surviving Company and assignsPurchaser shall cause the Surviving Company to pay to such Optionholders, heirsthrough the Surviving Company’s payroll system (with respect to Optionholders who are employed by the Company Group at the time of such payment) or pursuant to the payment instructions set forth in such holder’s Option Surrender Form (with respect to Optionholders who are not employed by the Company Group at the time of such payment), legateessuch amounts in accordance with their Pro Rata Share less any required withholding Taxes. In the event that any amount is owed to the Seller Representative, personal representatives whether for fees, expense reimbursement or indemnification, that is in excess of the Seller Representative Expense Fund, the Seller Representative shall be entitled to be reimbursed by the Sellers proportionately in accordance with each SGA Partysuch Person’s Pro Rata Share, and any references in this Agreement the Sellers agree to a SGA Party shall mean and include so reimburse the successors Seller Representative. Upon written notice from the Seller Representative to the rights of the SGA Party hereunderSellers as to any such owed amount, whether pursuant including a reasonably detailed description as to testamentary dispositionsuch owed amount, the laws Sellers shall promptly deliver to the Seller Representative full payment of descent and distributionhis, her or otherwiseACTIVE 274341277 its Pro Rata Share of such owed amount. The Seller Representative also has the right to recover any amount owed to the Seller Representative from the Escrow Account.
Appears in 1 contract
Sources: Merger Agreement (Blackbaud Inc)
Seller Representative. (a) The SGA Parties hereby (i) By virtue of execution of this Agreement and/or execution of the Option Cancellation Agreement, and without any further act of the Sellers, the Sellers will be deemed to have irrevocably nominate, constitute and appoint designated Cyprium Investment Partners LLC as the Seller Representative as the and representative, agent and true and lawful attorney-in-fact of the SGA Parties in connection with the for each Seller for all matters set forth in relating to this Section 2.07Agreement, with full power of substitutionincluding without limitation, to act in the name place and stead of the Sellers for purposes of executing, delivering, acknowledging, certifying, filing, modifying, or waiving executing any and all documents instruments or other documents, and taking performing any actions that the Seller Representative mayand all other acts or things, in its reasonable discretion, determine to be necessary, desirable or appropriate in connection with or arising out of this Section 2.07 the Sellers’ names and its performance of its duties under this Section 2.07 and (ii) grant the Seller Representative such powers and authority as are necessary to carry out the functions assigned to it under this Section 2.07 (each such functions, an “Authorized Action”). By its execution hereof, the Seller Representative agrees to serve in such capacity; provided, howeveron their behalf, that the Seller Representative shall have no obligation may deem necessary or advisable, or that may be required pursuant to act on behalf this Agreement or otherwise, in connection with the consummation of the Sellers except as expressly provided hereintransactions contemplated hereby. A SGA Party will be deemed a party or a signatory to any document, instrument, certificate, or agreement that the Seller Representative signs on behalf of such SGA Party in accordance with this Section 2.07. Each of the SGA Parties acknowledges and agrees that actions of the Seller Representative under this Agreement shall require the vote or consent (as applicable) of each Person constituting the Seller Representative.
(b) Without limiting the generality of Section 2.07(a)the foregoing, the Seller Representative shall have the full power, power and authority, in the names of the Sellers and discretion on their behalf, to:
: (i) agree with the Purchaser with respect to any matter or thing required or deemed necessary by the Seller Representative in connection with the provisions of this Agreement calling for the agreement of the Sellers, give and receive notices on behalf of all notices Sellers, and act on behalf of the Sellers in connection with any matter as to which the Sellers are or may be obligated to indemnify the Purchaser under this Agreement, all in the absolute discretion of the Seller Representative; (ii) interpret the terms and provisions of this Agreement; (iii) dispute or fail to dispute any Losses claimed hereunder and to negotiate and compromise any dispute which may arise under this Agreement and to sign any releases or other documents with respect to any such dispute, including the interpretation of, disputing or failing to dispute the composition or amount of Closing Cash on Hand, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses or any item on the Closing Statement and negotiating and signing any release in respect of any dispute that may arise under Section 1.6; (iv) execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given pursuant to or in connection with Section 2.07, Section 6.01, Section 6.02 or Article VIII;
(ii) take or refrain from taking any actions on behalf the consummation of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02;
(iii) take the actions set forth in Section 6.02
(iv) assist the SGA Parties in performing their obligations under Section 5.05;
(v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 and (B) of the True Up Amount pursuant to Section 2.06; and
(vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith.
(c) The Seller Representative shall not have the authority to:
(i) amend, supplement or waive this Agreement on behalf of any SGA Party; or
(ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with each Seller’s Purchase Price Percentage.
(d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Purchaser relating to the defense or settlement of any claims for which the Sellers may be required to indemnify, or pay to, Purchaser pursuant to Article VIII or Section 6.02, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest, or otherwise contest the same.
(e) The Purchaser agrees that the Seller Representative, acting in its capacity as the Seller Representative, shall have no liability to the Purchaser for any Authorized Action, except that the Seller Representative shall not be relieved of liability to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or gross negligence by the Seller Representative. The Seller Representative, acting in its capacity as the Seller Representative, shall not have any liability to the Purchaser for any breach under this Agreement or any Ancillary Agreement by any Seller.
(f) To the maximum extent permitted by applicable Law, each Seller (on a several and not joint basis and in proportion to each Seller’s Purchase Price Percentage), hereby agrees to indemnify and hold harmless the Seller Representative against all Losses resulting from, arising out of, or incurred by the Seller Representative (in its capacity as such) in connection with any action, suit or proceeding to which the Seller Representative is made a party by reason of the fact it is or was acting as the Seller Representative of any Seller pursuant to the terms of this Agreement. The Seller Representative shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Seller Representative shall not have a fiduciary relationship in respect of the SGA Companies. The Seller Representative shall not be liable to any Seller for any action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Seller Representative shall not be relieved of any liability imposed by law for fraud or for gross negligence.
(g) The Sellers each agree, in addition to the foregoing, that:
(i) The provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any SGA Party may have in connection with the transactions contemplated by this Agreement; (v) receive funds and give receipt for funds and to distribute to the Sellers their respective Pro Rata Share of any funds to which they are entitled pursuant to this Agreement; and (vi) in general, do all things and perform all acts, including, without limitation, executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Seller Representative to be necessary or advisable in connection with, this Agreement.
(iib) The provisions power of attorney created under this Section 2.07 Agreement is coupled with an interest and shall be binding upon and enforceable on and against the successors and assigns, respective heirs, legateespersonal representatives, successors, and assigns of the Sellers, and the power of attorney shall not be revoked or terminated by the death, disability, bankruptcy, incompetency, dissolution or termination of any Seller, its heirs, personal representatives or its respective successors or assigns. The Purchaser may rely upon any decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each SGA PartySeller. The Purchaser is hereby relieved from any Liability to any Person for any acts done by the Purchaser in accordance with such decision, act, consent or instruction of the Seller Representative.
(c) In the event that the Seller Representative resigns or otherwise becomes unable to serve, the Sellers shall, within 30 days after notice thereof, determine and designate by consent of those Sellers who held a majority of the Shares immediately prior to the Effective Time, a successor Seller Representative who shall have all of the rights, powers and authority conferred on the Seller Representative in this Agreement, and if the Sellers fail so to designate such successor within such period, any Seller or the Purchaser may petition a court of appropriate jurisdiction for appointment of such successor Seller Representative. The Sellers agree to promptly notify the Purchaser in writing of any change of the Seller Representative and the Purchaser shall be entitled to rely on any action taken by Seller Representative prior to receipt of notice of such change.
(d) The Seller Representative hereby is authorized to receive and hold the Expense Reserve Holdback and to disburse funds on behalf of the Sellers from and out of the Expense Reserve Holdback from time to time in order to satisfy any obligations of the Sellers arising out of the transactions contemplated by this Agreement, including, without limitation, filing fees, costs and expenses of attorneys and accountants and other experts engaged by the Seller Representative on behalf of the Sellers, and any references other contingent or unforeseen liabilities or obligations of the Sellers. The Seller Representative will distribute any funds remaining in this Agreement to a SGA Party shall mean and include the successors Expense Reserve Holdback to the rights Sellers in accordance with their Pro Rata Share no later than sixty (60) days after the final determination of the SGA Party hereunder, whether Purchase Price pursuant to testamentary disposition, the laws of descent and distribution, or otherwiseSection 1.6.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMTC Corp)
Seller Representative. (a) The SGA Parties Each Seller hereby (i) irrevocably nominateconstitutes and appoints Tiptree, constitute and appoint the Seller Representative as the agent and true and lawful attorney-in-fact of the SGA Parties in connection with the matters set forth in this Section 2.07, with full power of substitution, to act in the name place and stead of the Sellers for purposes of executing, delivering, acknowledging, certifying, filing, modifying, or waiving any and all documents and taking any actions that the Seller Representative may, in its reasonable discretion, determine to be necessary, desirable or appropriate in connection with or arising out of this Section 2.07 and its performance of its duties under this Section 2.07 and (ii) grant the Seller Representative such powers and authority as are necessary to carry out the functions assigned to it under this Section 2.07 (each such functions, an “Authorized Action”). By its execution hereof, the Seller Representative agrees to serve in such capacity; provided, however, that the Seller Representative shall have no obligation to act on behalf of the Sellers except as expressly provided herein. A SGA Party will be deemed a party or a signatory to any document, instrument, certificate, or agreement that the Seller Representative signs on behalf of such SGA Party in accordance with this Section 2.07. Each of the SGA Parties acknowledges and agrees that actions of the Seller Representative under this Agreement shall require the vote or consent (as applicable) of each Person constituting the Seller Representative.
(b) Without limiting the generality of Section 2.07(a), the Seller Representative shall have the full power, authority, and discretion to:
(i) give and receive all notices required or permitted to be given pursuant to or in connection with Section 2.07, Section 6.01, Section 6.02 or Article VIII;
(ii) take or refrain from taking any actions on behalf of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02;
(iii) take the actions set forth in Section 6.02
(iv) assist the SGA Parties in performing their obligations under Section 5.05;
(v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 and (B) of the True Up Amount pursuant to Section 2.06; and
(vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith.
(c) The Seller Representative shall not have the authority to:
(i) amend, supplement or waive this Agreement on behalf of any SGA Party; or
(ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with each Seller’s Purchase Price Percentage.
(d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Purchaser relating to the defense or settlement of any claims for which the Sellers may be required to indemnify, or pay to, Purchaser pursuant to Article VIII or Section 6.02, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest, or otherwise contest the same.
(e) The Purchaser agrees that the Seller Representative, acting in its capacity as the Seller Representative, shall have no liability to act as its representative for all purposes under the Transaction Agreements, and the Seller Representative hereby accepts such appointment. Each Seller hereby irrevocably constitutes and appoints, with full power of substitution, the Seller Representative as its true and lawful attorney‑in‑fact, with full power and authority in such Seller’s name, to take all actions required or permitted to be taken hereunder, and otherwise to act on behalf of, and to bind, each Seller for all purposes under the Transaction Agreements, including (i) approving or contesting any amounts in the Closing Statement and entering into any settlement or agreement to resolve any Disputed Item, (ii) administering any indemnification matter on behalf of Sellers, including agreeing to the Purchaser settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, (iii) executing and delivering such waivers and consents in connection with this Agreement and each other Transaction Agreement and the consummation of the transactions contemplated hereby and thereby as the Seller Representative, in its sole discretion, may deem necessary or desirable, (iv) refraining from enforcing any right of any Seller and/or the Seller Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Agreement; provided that no such failure to act on the part of the Seller Representative, except as otherwise expressly provided in the applicable Transaction Agreement, shall be deemed a waiver of any such right or interest by the Seller Representative or by such Seller unless such waiver is in writing signed by the waiving party or by the Seller Representative and (v) making, executing, acknowledging and delivering all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Transaction Agreements and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith. Without limiting the foregoing, (i) each Seller hereby expressly consents to the amendment of the Shareholders Agreement by and among PFG and its shareholders party thereto, dated as of December 16, 2010 (the “Shareholders Agreement”), to the extent reasonably required to facilitate the transactions contemplated hereby (provided that the foregoing consent to amend such Shareholders Agreement shall not apply to any amendment that would have a disproportionate material adverse effect upon any individual Seller as compared to the effect thereof on the other Sellers hereunder), and (ii) each Seller hereby agrees to cause the Articles of Incorporation of the Company, dated August 5, 1999 and as amended on July 12, 2012, to be amended prior to the Closing to delete the last sentence of the definition of “Sale Transaction” provided for in Article VI, Section F therein. Each Seller agrees to deliver, as and when requested by the Seller Representative, certificates evidencing such Seller’s Purchased Shares duly endorsed or accompanied by written instruments of transfer in form satisfactory to the Seller Representative, duly executed by such Seller, free and clear of any liens or other adverse claims or restrictions (other than the RGA Liens), and to appoint the Seller Representative as the custodian of such Purchased Shares for purposes of the Closing, with full power to deliver such Purchased Shares to the Buyer at Closing, whether or not such Purchased Shares are certificated or held of record in book entry form. Each Seller agrees to cooperate fully in, take all necessary and desirable actions approved by the Seller Representative in connection with, and not to take any action prejudicial or inconsistent with, the transactions contemplated hereby.
(b) In furtherance of this Section 1.6, each of the Sellers (i) hereby irrevocably grants to, and appoints the Seller Representative and its designees as its irrevocable proxy and attorney-in-fact (with full power of substitution and resubstitution) to vote the Shares, provide written consents, express consent or dissent or otherwise utilize voting power in accordance with the Seller Representative’s rights and obligations under this Section 1.6 during the term hereof, (ii) hereby affirms that the irrevocable proxy set forth in this Section 1.6(b) is given in connection with the execution of this Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Seller under this Agreement and (iii) hereby (A) affirms that such irrevocable proxy is coupled with an interest and (B) affirms that such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 1759 of the General Association Act of the Commonwealth of Pennsylvania. Each Seller hereby represents that all proxies, powers of attorney, instructions or other requests given by such Seller prior to the execution of this Agreement in respect of the voting of the Shares held by such Seller, if any, are not irrevocable and each Seller hereby revokes (or causes to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to the Shares. The vote, if any, of the proxy holder pursuant to the proxy set forth in this Section 1.6 shall control the outcome, and be determinative, of any conflict between the vote by the proxy holder of any Seller’s Shares and a vote by such Seller. Each Seller shall provide evidence to the Seller Representative in connection with the actions of such Seller under or relating to this Section 1.6(b) as the Seller Representative shall reasonably request.
(c) Each Seller acknowledges that this Section 1.6 is intended to promote the efficient negotiation and handling of matters arising under or in connection with the Transaction Agreements. Buyer shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Seller Representative and shall not be liable in any manner whatsoever for any Authorized Actionaction taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Seller Representative. Without limiting the generality of the foregoing, except each Seller hereby irrevocably constitutes and appoints, with full power of substitution, the Seller Representative as its true and lawful attorney-in-fact, with full power and authority in such Seller’s name, place and stead, to execute, certify, acknowledge, deliver, file and record all agreements, certificates, instruments and other documents and any amendment thereto, and to take any other action that the Seller Representative deems necessary or appropriate in connection with Sellers’ or the Seller Representative’s obligations under the Transaction Agreements and, at the Seller Representative’s request, each Seller shall not evidence such power by execution of a separate certificate, affidavit, power of attorney or other instrument in such form and substance as may be relieved reasonably requested by the Seller Representative. Each Seller’s appointment of liability the Seller Representative as its attorney-in-fact shall be deemed to be a power coupled with an interest and shall survive the incompetency, bankruptcy or dissolution of Sellers giving such power. In the event of any conflict between this Section 1.6 and the Shareholders Agreement, the provisions of this Section 1.6 shall prevail. The following arrangements between Sellers and the Seller Representative are made in consideration of the Seller Representative’s acceptance of its appointment as the Seller Representative.
(d) In the event that the Seller Representative becomes unable to perform its responsibilities hereunder or resigns from such position, Sellers holding a majority of the Preferred Stock immediately prior to the extent that Closing shall select another representative to fill such Authorized Action is found vacancy and such substituted representative shall be deemed to be the Seller Representative for all purposes under the Transaction Agreements.
(e) All actions, decisions and instructions of the Seller Representative in accordance with the power and authority granted to it under the terms of this Agreement shall be conclusive and binding upon all Sellers and shall be deemed authorized, approved, ratified and confirmed by a final order Sellers, having the same force and effect as if performed pursuant to the direct authorization of a court such Sellers, and no Seller shall have any cause of competent jurisdiction to have constituted fraud action against the Seller Representative for any action taken, decision made or gross negligence instruction given by the Seller Representative. The Seller RepresentativeRepresentative hereby agrees that any exercise of the powers, acting in its capacity as authorities or rights granted to it by Sellers under the Seller Representative, shall not have any liability to the Purchaser for any breach under terms of this Agreement or any Ancillary Agreement by any Sellershall be consistent with and in furtherance of the agreements contained in this Agreement, including the agreements of the Company Sellers set forth in Section 1.10.
(f) To the maximum extent permitted by applicable LawSellers agree, each Seller (on a several severally and not joint basis and jointly, in proportion to each Seller’s accordance with their respective Allocated Portion of the Purchase Price Percentage)Price, hereby agrees to indemnify the Seller Representative for, and to hold the Seller Representative harmless against, any Losses incurred, arising out of or in connection with the Seller Representative’s carrying out its duties hereunder or under any other Transaction Agreement, including costs and expenses of successfully defending the Seller Representative against all any claim of liability with respect thereto; provided that Seller Representative shall not be entitled to indemnification hereunder from any Seller to the extent such Losses resulting fromare the result of the Seller Representative’s willful breach (as defined in Section 8.2), arising out offraudulent acts or omissions. The Seller Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The Seller Representative may deliver to the Sellers from time to time a statement of costs, or incurred by expenses and other Losses of the Seller Representative subject to indemnification by the Sellers hereunder, divided among the Sellers in accordance with their Allocated Portions and, upon receipt thereof, each Seller shall promptly (and in any event within five (5) Business Days of receipt thereof) remit its capacity as suchallocated amount to the Seller Representative in the manner indicated in such statement; provided that in no event shall any Seller’s aggregate indemnification obligation under this Section 1.6(f) in connection with exceed the aggregate proceeds that such Seller would have received had the transactions contemplated hereby been consummated on the terms and conditions set forth herein. In addition, the Seller Representative may, at its sole election, offset from any action, suit or proceeding amounts received hereunder for distribution to the Sellers the amount of any Losses for which the Seller Representative is made a party by reason entitled to indemnification pursuant to this Section 1.6(f) and use such amounts to satisfy all or any portion of such indemnification obligations of the fact it is Sellers. The indemnity obligations of this Section 1.6(f) shall survive the resignation, replacement or was acting as removal of the Seller Representative of any Seller pursuant to or the terms termination of this Agreement. The Seller Representative shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Seller Representative shall not have a fiduciary relationship in respect of the SGA Companies. The Seller Representative shall not be liable to any Seller for any action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Seller Representative shall not be relieved of any liability imposed by law for fraud or for gross negligence.
(g) The Sellers each agree, in addition to the foregoing, that:
(i) The provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any SGA Party may have in connection with the transactions contemplated by this Agreement.
(ii) The provisions of this Section 2.07 1.6 shall be binding upon the successors and assignsexecutors, heirs, legateeslegal representatives, personal representatives representatives, successor trustees, and successors of each SGA PartySeller, and any references in this Agreement to a SGA Party Seller shall mean and include the successors to the such Seller’s rights of the SGA Party hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, distribution or otherwise.
(h) The Seller Representative, in its capacity as such, hereby represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:
Appears in 1 contract