Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to: (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document; (ii) determine whether the conditions to Closing in Article VII have been satisfied; (iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate; (iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document; (v) grant any consent, approval or waiver under this Agreement or any other Transaction Document; (vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document; (vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document; (viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers; (ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative; (x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors; (xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors; (xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative; (xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense; (xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and (xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns. (b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller. (c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each The Sellers, without any further action on the part of any of them, consent to the appointment of Vækstfonden, as the representative of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers (the “Sellers’ Representative (and each successor appointed in accordance with Section 11.18(cRepresentative”)) , as its, his or her true and lawful the attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are requiredand the taking by the Sellers’ Representative of any and all actions and the making of any decisions required or permitted to be taken by each Seller under this Agreement, authorized including, without limitation, the exercise of the power to (i) authorize delivery to the Buyer of the Escrow Fund, or contemplated any remaining portion thereof, in payment of the Sellers’ obligations pursuant to Section 2.3(g), (ii) authorize delivery to the Buyer of the Escrow Fund and/or [* * *], or any remaining portion thereof, in payment of indemnification claims by the Buyer and its Affiliates (including the Company and the Subsidiary) and the respective Representatives, successors and assigns of each of the foregoing pursuant to Article VIII, (iii) agree to, negotiate, enter into settlements and compromises of and comply with awards of arbitrators and, if applicable, orders of courts with respect to adjustments to the Base Purchase Price and/or Adjusted Purchase Price and/or indemnification claims and/or disputes relating to Additional Consideration, (iv) resolve any adjustments to the Base Purchase Price and/or Adjusted Purchase Price and/or indemnification claims and/or disputes relating to Additional Consideration, and (v) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Accordingly, the Sellers’ Representative has authority and power to act on behalf of each Seller with respect to all matters related to this Agreement and the disposition, settlement or other Transaction Documents handling of all indemnification claims, rights or obligations arising from and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices taken pursuant to this Agreement or any other Transaction Document;
(v) grant any consentincluding, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waiversbut not limited to, clarifications or post-Closing modifications the authority and power to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder receive notices on behalf of the Hatteras Sellers for distribution Sellers. Any notice provided to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or to have been provided to all the Sellers. The Sellers shall be bound by all actions taken by the Sellers’ Representative unless such waiver is in writing signed by connection with this Agreement, and the Buyer, the Company and the Escrow Agent shall be entitled to rely on any action or decision of the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting shall incur no liability with respect to any action taken or suffered by signing as 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, except the Sellers’ Representative’s own willful misconduct or gross negligence. In all questions arising under this Agreement, the Sellers’ Representative may rely on the advice of any Hatteras Sellercounsel, and the Sellers’ Representative shall not be liable to Sellers for anything done, omitted or suffered in good faith by the Sellers’ Representative based on such advice.
(c) If Sellers who in the aggregate hold at least a majority of the Shares prior to the Closing shall have the right at any time to remove the then-acting Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative appoint a successor Sellers’ Representative will be appointed by the remaining PrincipalsRepresentative; provided, however, that, unless that neither such removal of the successor then acting Sellers’ Representative is a Principal, the nor such appointment of such a successor Sellers’ Representative shall be subject effective until the delivery to the prior written consent Buyer and to the Escrow Agent of Purchaser (not executed counterparts of a writing signed by Sellers’ holding such majority interest in the Shares with respect to be unreasonably withheldsuch removal and appointment, conditioned or delayed). Any references in this Agreement to together with an acknowledgment signed by the successor Sellers’ Representative appointed in such writing that he or she accepts the responsibility of successor Sellers’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Sellers’ Representative. Each successor Sellers’ Representative shall have all of the power, authority, rights, privileges and obligations conferred by this Agreement upon the original Sellers’ Representative, and the term “Sellers’ Representative” as used herein and in the Escrow Agreement shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Micro Circuits Corp)
Sellers’ Representative. (a) Each By voting in favor of the Hatteras adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Seller and each Incentive Recipient shall be deemed to have appointed Shareholder Representative Services LLC as representative, agent , proxy and attorney in fact for and on behalf of the Sellers hereby irrevocably constitutesand the Incentive Recipients (the “Sellers’ Representative”). Without limiting the generality of the foregoing, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with has full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action)and authority, on behalf of each such Hatteras SellerSeller and each Incentive Recipient and his or her successors and assigns, as are requiredto (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by Sellers and the Incentive Recipients in connection herewith, authorized including the Escrow Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents Escrow Agreement, (iii) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to negotiate, enter into settlements, assume the defense of claims, demand arbitration and the transactions contemplated hereby comply with orders of courts and therebyawards of arbitrators with respect to such claims, which includes the power and authority to:
(i) execute and deliver to take all documents actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) authorize delivery to Parent of the Escrow Amount, or any portion thereof, in satisfaction of any deficiency as specified in Section 2.11(d), (vii) authorize delivery to Parent of the Escrow Amount, or any portion thereof, in satisfaction of claims brought by Parent for Losses incurred under this Agreement (except as otherwise covered by subsection (vi) hereof), (viii) authorize distribution of the Escrow Amount and any earnings and proceeds thereon otherwise payable to the Sellers, (ix) to take all actions which the Sellers’ Representative considers necessary and desirable to carry out in connection with the intent duties described in Sections 2.11 and 7.1(c) herein; and (x) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf of the Sellers and Incentive Recipients in connection with this Agreement and the Escrow Agreement. Notwithstanding the foregoing, each Seller will have the sole right to negotiate, compromise and settle any other Transaction Document;claim by Parent solely against such Seller under Section 7.1(a)(ii). Parent will be entitled to conclusively rely on the acts of the Sellers’ Representative as provided in this Section 8.13 as of the acts of Sellers. If the Sellers’ Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Sellers shall (by consent of those Persons entitled to at least a majority of the Escrow Amount), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Sellers’ Representative and immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the former Sellers’ Representative as the Sellers’ Representative hereunder. If for any reason there is no Sellers’ Representative at any time, all references herein to the Sellers’ Representative shall be deemed to refer to the Sellers.
(iib) determine whether Each Seller and each Incentive Recipient agrees that such agency and proxy are coupled with an interest and are therefore irrevocable without the conditions consent of the Sellers’ Representative and will survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller and any Incentive Recipient. Each Seller and each Incentive Recipient hereby agrees to Closing receive correspondence from the Sellers’ Representative, including in Article VII electronic form. All decisions and actions by the Sellers’ Representative will be binding upon all Sellers and all Incentive Recipients, and no Seller and no Incentive Recipient will have been satisfied;
(iii) serve as the named party (not right to object, dissent, protest or otherwise contest the same. The Sellers’ Representative will have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations will be determined solely by the express provisions of this Agreement. Each Seller and each Incentive Recipient will, in his individualaccordance with its Escrow Account Allocation indemnify and hold harmless the Sellers’ Representative and its members, but solely in his representative capacity) with respect to any claim for indemnification managers, successors and assigns against all Losses incurred by any Purchaser Indemnitee and to resolve such claims as the Sellers’ Representative in connection with the performance of its sole discretion deems appropriate;
(iv) give and receive duties as the Sellers’ Representative, including Losses resulting from any and all notices pursuant action, suit or proceeding to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated which the Sellers’ Representative is made a party by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf reason of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers fact it is or was acting as the Sellers’ Representative under this Agreement in each case as such Loss is incurred or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does suffered. If not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted paid directly to the Sellers’ Representative under by the Sellers and Incentive Recipients, any such Losses may be recovered by the Sellers’ Representative from any amounts in the Seller Expense Account; provided that while this Agreement section allows the Sellers’ Representative to be paid from the Seller Expense Account, this does not relieve the Sellers or the Incentive Recipients from their obligation to promptly pay such Losses as such Losses are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. Neither the Sellers’ Representative nor any agent employed by it will incur any liability to any Seller or any Incentive Recipient relating to the performance of its duties hereunder except for actions or omissions constituting fraud or bad faith. The Sellers’ Representative will have no liability in respect of any action, claim or proceeding brought against the Sellers’ Representative by any Seller or any Incentive Recipient if the Sellers’ Representative took or omitted taking any action in good faith.
(c) Each Seller and each Incentive Recipient agrees that the amount of $100,000 (the “Seller Expense Amount”) will be retained by the Sellers’ Representative from the Merger Consideration, to pay the costs and expenses incurred by the Sellers’ Representative related to performance of its duties hereunder (the “Seller Expense Account”). The Sellers and the Incentive Recipients shall survive not receive interest or other earnings on the Closing Date Seller Expense Account and the Sellers and the Incentive Recipients irrevocably transfer and assign to the Sellers’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Seller Expense Account. The Sellers and the Incentive Recipients acknowledge that the Sellers’ Representative is not providing any investment supervision, recommendations or termination of this Agreementadvice. The Sellers’ Representative shall be the only person authorized to take have no responsibility or liability for any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality loss of principal of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ RepresentativeSeller Expense Account other than as a result of its gross negligence or willful misconduct. The Sellers’ Representative shall retain the amounts in the Seller Expense Account for so long as it shall determine in its reasonable discretion. The balance of the Seller Expense Amount, if any, will be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or distributed by the transactions contemplated hereby. Any action taken by Sellers’ Representative in to the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement Exchange Agent for distribution to the Sellers and the Incentive Recipients in accordance with this Section 11.18 the Escrow Account Allocation. For tax purposes, the Seller Expense Account shall be binding upon such Hatteras Seller treated as having been received and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed voluntarily set aside by the remaining Principals; provided, however, that, unless Sellers and the successor Sellers’ Representative is a Principal, Incentive Recipients at the appointment time of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ RepresentativeClosing. The Parties acknowledge and parties agree that the Sellers’ Representative is not acting as a party to this Agreement solely withholding agent or in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its any similar capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebySeller Expense Account.
Appears in 1 contract
Sources: Merger Agreement (Rimage Corp)
Sellers’ Representative. (a) Each of By executing this Agreement or participating in the Hatteras Sellers Transactions and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Transactions, each Seller shall be deemed to have approved the designation of, and hereby irrevocably constitutesdesignates, designates ▇▇▇▇ ▇▇▇▇▇▇▇▇ as the representative, agent and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers all purposes under this Agreement and the Transaction Documents agreements ancillary hereto, including to give and receive notices and communications, to refrain from enforcing any right authorize satisfaction of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; providedclaims by ▇▇▇▇▇, howeverto object to such payments, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement agree to, negotiate, enter into settlements and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statementcompromises of, and agree upon any resolution demand arbitration and comply with orders of any dispute courts and awards of arbitrators with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Documentclaims, and to amend take all other actions that are either (i) necessary or supplement any appropriate in the judgment of the foregoing. All Sellers Representative for the accomplishment of the indemnities, immunities and powers granted to foregoing or (ii) permitted by the Sellers’ Representative under this Agreement shall survive the Closing Date or termination terms of this Agreement. The Sellers Representative may resign at any time upon at least ten (10) days prior written notice to the Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser . No bond shall be required to provide notices to of the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ After the Closing, notices or communications to or from the Sellers Representative shall be each Hatteras Seller’s agent for service of process with respect constitute notice to any disputes regarding or arising out of this Agreement or from the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant Sellers Representative shall not incur Liability of authority provided for any kind with respect to any action or omission by the Sellers Representative in this Section 11.18: (i) is coupled connection with an interest and is being granted, in part, as an inducement his services pursuant to the Parties to enter into this Agreement and will be irrevocable the agreements ancillary hereto, except to the extent resulting from the bad faith, gross negligence or willful misconduct of the Sellers Representative. The Sellers shall indemnify, defend and hold harmless the Sellers Representative from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and reasonable out-of-pocket costs and expenses (including the out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Sellers Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Sellers Representative, the Sellers Representative shall promptly reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. The Sellers acknowledge and agree that the foregoing indemnities shall survive the death, incompetency, bankruptcy resignation or liquidation removal of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to the Sellers Representative or the termination of this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerAgreement.
(c) If Sellers’ Representative or its successors and permitted assignsPromptly following the Closing, as the case may beBuyer shall transfer, advise the Hatteras Sellers that it is unavailable by wire transfer of immediately available funds to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed account designated by the remaining Principals; providedSellers Representative prior to Closing (the “Expense Fund Account”) the Expense Fund Amount in cash, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative which shall be subject to used for the prior written consent purposes of Purchaser (not to be unreasonably withheldpaying directly, conditioned or delayed). Any references in this Agreement to Sellers’ reimbursing the Sellers Representative shall be deemed to include for, any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller third party expenses pursuant to this Agreement except for Sellers’ Representativeand the agreements ancillary hereto. The Parties acknowledge Sellers shall not receive any interest or earnings on the Expense Fund Amount and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according irrevocably transfer and assign to the terms of this Section 11.18Sellers Representative any ownership right that they may otherwise have had in any such interest or earnings. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ The Sellers Representative shall have no liability to, and shall not be liable for any Losses ofloss of principal of the Expense Fund Amount other than as a result of its bad faith, gross negligence or willful misconduct. The Sellers Representative shall hold the Expense Fund Amount separate from its corporate funds, shall not use the Expense Fund Amount for its operating expenses or any third Personother corporate purposes and shall not voluntarily make the Expense Fund Amount available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Sellers Representative’s responsibilities, the Sellers Representative shall deliver any Party remaining balance of the Expense Fund Amount to Sellers in accordance with their Pro Rata Fractions. For Tax purposes, the Expense Fund Amount shall be treated as having been received and voluntarily set aside by ▇▇▇▇▇▇▇ at the time of Closing. Any Tax required to be withheld with respect to the deemed payment to a Seller of its portion of the Expense Fund Amount shall reduce the amount of cash payable to such Seller at Closing in respect of its Company Common Stock and shall not reduce the Expense Fund Amount.
(d) A decision, act, consent or instruction of the Sellers Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 9.6 and Section 9.7 hereof, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers. Buyer may rely upon any Indemnified Party in connection with any obligationssuch decision, actions act, consent or failure to act instruction of the Sellers Representative as being the decision, act, consent or instruction of the Sellers’ Representative under this Agreement . Buyer is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or otherwise in respect instruction of this Agreement or the transactions contemplated herebySellers Representative.
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Sellers’ Representative. (a) Each Upon receipt of the Hatteras Sellers hereby irrevocably constitutes, designates Seller Approval and appoints, authorizes and empowers the Sellers’ Representative (and execution of a Seller Joinder Agreement by each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, Donn ▇. ▇▇▇ ▇▇ hereby appointed and authorized as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review , to serve as the Preliminary Statement representative, agent and provide notice to Purchaser under Section 3.6 attorney in fact of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute each Seller with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging expressly set forth in this Agreement and the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI Ancillary Agreements to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered performed by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative. Sellers’ Representative providing services has full power and authority on behalf of Sellers to do anything necessary or appropriate to carry out, perform or enforce any obligations or rights of Sellers under or in connection with this Agreement and the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faithAncillary Agreements, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have the power and authority to institute legal action (i) execute, deliver and perform his obligations under the Escrow Agreement, execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder and take such further actions under the Escrow Agreement as Sellers’ Representative deems to be necessary or desirable in the sole discretion of Sellers’ Representative; (ii) execute, deliver and perform his obligations under the PPP Loan Escrow Agreement, execute any instructions or directions to the PPP Loan Bank with respect to disbursements or other matters thereunder and take such further actions under the PPP Loan Escrow Agreement as Sellers’ Representative deems to be necessary or desirable in the sole discretion of Sellers’ Representative; (iii) execute and deliver any Ancillary Agreements (with such modifications or changes therein as to which Sellers’ Representative, in his sole discretion, has consented) and to agree to such amendments or modifications thereto as Sellers’ Representative, in his sole discretion, determines to be necessary or desirable; (iv) execute and deliver such waivers and consents in connection with this Agreement and the Ancillary Agreements and the consummation of the Transactions as Sellers’ Representative, in his sole discretion, determines to be necessary or desirable; (v) collect and receive all moneys and other proceeds and property payable to Sellers’ Representative from the Adjustment Escrow Amount, the PPP Loan Escrow Amount or otherwise act as described herein (including any portion of the Final Adjustment Amount) or in any Ancillary Agreement, (vi) give and receive notices and communications on behalf of Sellers in connection with this Agreement and the Hatteras Sellers Ancillary Agreements and related matters, including in connection with Claims under Article VIII, (vii) agree to, negotiate, and enter into settlements, adjustments and compromises of, and to conduct dispute resolution and comply with Orders of courts arbitrators with respect to any claims against Purchaser relating to to, such Claims, and (viii) take all other actions that are either (A) necessary or appropriate in the judgment of Sellers’ Representative for the accomplishment of the foregoing or (B) specifically mandated by the terms of this Agreement or the Transaction Documentsany Ancillary Agreement. Such agency may be changed by Sellers from time to time upon not less than ten (10) days’ prior written notice to Buyer; and
(xv) perform each such act and thing whatsoever provided, that Sellers’ Representative may not be or is required removed unless a majority in interest of Sellers agree in writing to do, or which such removal and to the identity of the substituted agent. A vacancy in the position of Sellers’ Representative may be filled by a majority in its sole discretion determines is desirable to do, pursuant interest of Sellers. No bond will be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative will constitute notice to carry out or from Sellers. The grant of authority provided for herein is coupled with an interest and is irrevocable and survives the intent death, incompetency, bankruptcy or liquidation of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingSeller. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall will survive the Closing Date or and any termination of this Agreement. The Agreement or the Ancillary Agreements.
(b) Sellers’ Representative will not be liable to any Seller for any act done or omitted hereunder as Sellers’ Representative while acting in good faith. Sellers will indemnify Sellers’ Representative and hold Sellers’ Representative harmless against any Liability incurred without negligence, willful misconduct or bad faith on the part of Sellers’ Representative and arising out of or in connection with the acceptance or administration of Sellers’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by Sellers’ Representative (the “Sellers’ Representative Expenses”). At the Closing, Buyer shall cause the Sellers’ Representative Holdback Amount to be the only person authorized to take any action so required, authorized or contemplated paid by this Agreement by any Hatteras Seller and, without limiting the generality wire transfer of the foregoing, Purchaser shall be required to provide notices immediately available funds to the Hatteras Sellers pursuant to this Agreement solely to account provided by Sellers’ Representative. The Sellers’ Representative Holdback Amount shall be each Hatteras Seller’s agent constitute a non-exclusive source of reimbursement for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in Expenses. If any portion of the name Sellers’ Representative Holdback Amount remains unused following the two-year anniversary of or on behalf the Closing Date, and such amount is not then reasonably expected to be used for Sellers’ Representative Expenses, the remainder of any Hatteras Seller in connection with any matter arising under this Agreement the Sellers’ Representative Holdback Amount shall be disbursed to the Sellers (in accordance with this Section 11.18 shall each Seller’s proportionate share of the Merger Consideration). Upon any payment to Sellers of amounts from the Adjustment Escrow Amount, the PPP Loan Escrow Amount and any portion of the Final Adjustment Amount (which, for the avoidance of doubt, would be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement paid to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as (for disbursement to Sellers)), Sellers’ Representative will have the right to recover Sellers’ Representative Expenses from each Seller (in accordance with each Seller’s proportionate share of any Hatteras Sellerthe Merger Consideration).
(c) If Sellers’ Representative Sellers acknowledge and agree that any payments made by Buyer, or any of its successors and permitted assignsAffiliates, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by constitute payment of amounts due (including the remaining Principals; provided, however, that, unless Merger Consideration) for such payment obligations of Buyer under the successor terms of this Agreement as though such payments were made directly to the applicable Seller. Sellers’ Representative is a Principal, will distribute promptly to the appointment applicable Seller (in accordance with the terms of this Agreement) all such successor Sellers’ Representative amounts received from Buyer under this Agreement. It shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively sole and absolutely rely, without inquiry, exclusive responsibility and until the receipt of written notice of a change obligation of Sellers’ Representative under Section 11.18(c)to make appropriate and proportional distribution of such payments to Sellers.
(d) A decision, continue act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, will constitute a decision of all Sellers and will be final, binding and conclusive. Buyer and its Affiliates are entitled to relyrely upon any such decision, without inquiryact, upon the actions consent or instruction of Sellers’ Representative as being the actions decision, act, consent or instruction of each Hatteras Seller all Sellers. Buyer and its Affiliates are hereby relieved from any Liability to any Person for any acts done by them in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered accordance with such decision, act, consent or other action taken by any Hatteras Seller pursuant to this Agreement except for instruction of Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (directs ▇▇▇▇▇ as its agent, proxy and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, representative under this Agreement (the "Sellers' Representative") to perform all take such acts (or to omit from taking any action), action on behalf of each such Hatteras Seller, and to exercise such rights, power and authority, as are requiredauthorized, authorized or contemplated by this Agreement delegated and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ ' Representative under this Agreement shall survive the Closing Date or termination on behalf of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely (including the right to receive notices and other documentation pursuant to the terms of the Agreement on behalf of Sellers and the right to terminate this Agreement on behalf of Sellers’ ). By its execution hereof, each Seller hereby authorizes, delegates and grants to the Sellers' Representative authority to take all actions that this Agreement explicitly provides are to be taken by the Sellers' Representative.
(b) Each of the ▇▇▇▇▇ Stockholders and Third Party Stockholders hereby authorizes and directs ▇▇▇▇▇ as its agent, proxy and attorney-in-fact and representative under this Agreement (the "Stockholder Representative") to take such action on behalf of such ▇▇▇▇▇ Stockholder and Third Party Stockholder, and to exercise such rights, power and authority, as are authorized, delegated and granted to the Stockholder Representative on behalf of such ▇▇▇▇▇ Stockholder and Third Party Stockholder pursuant to this Agreement (including the right to receive notices on behalf of the ▇▇▇▇▇ Stockholders and Third Party Stockholders, and to amend this Agreement on behalf of ▇▇▇▇▇ Stockholders and Third Party Stockholders). The By its execution hereof, each ▇▇▇▇▇ Stockholder and Third Party Stockholder hereby authorizes, delegates and grants to the Stockholder Representative authority to take all actions that this Agreement explicitly provides are to be taken by the Stockholder Representative.
(c) Each of the Management Stockholders hereby authorizes and directs ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as its agent, proxy and attorney-in-fact and representative under this Agreement (the "Management Representative") to take such action on behalf of such Management Stockholders, and to exercise such rights, power and authority, as are authorized, delegated and granted to the Management Representative pursuant to this Agreement (including the right to receive notices on behalf of the Management Stockholders, and to amend this Agreement on behalf of the Management Stockholders). By its execution hereof, each Management Stockholder hereby authorizes, delegates and grants to the Management Representative authority to take all actions that this Agreement explicitly provides are to be taken by the Management Representative.
(d) Each Seller agrees that none of the Sellers’ ' Representative, the Stockholder Representative or the Management Representative shall (i) be each Hatteras Seller’s agent liable for service of process any actions taken or omitted to be taken under or in connection with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby, or (ii) owe any fiduciary duty or have any fiduciary responsibility to any of Sellers or the Company as a result of their actions taken as the Sellers' Representative, the Stockholder Representative or the Management Representative pursuant to this Agreement, except for such actions taken or omitted to be taken resulting from the Sellers' Representative's, the Stockholder Representative's or the Management Representative's willful misconduct, respectively. Any action taken by Without limiting the foregoing, (i) each Seller, jointly and severally, hereby agrees to defend, indemnify and hold harmless the Sellers’ ' Representative and its Affiliates and each of their respective officers, directors, employees and agents from and against all expenses (including fees and expenses of counsel), losses, claims, fines, liabilities, damages, judgments or amounts paid in the name settlement in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on, arising out of or relating to the fact that such Person is or was a Sellers' Representative hereunder or arising out of acts or omissions of such Person in such capacity occurring on behalf or prior to the Closing (including in respect of any Hatteras Seller acts or omissions in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the deathtransactions contemplated hereby) except for, incompetencyin any case, bankruptcy acts or liquidation omissions which involve conduct known to such Person at the time to constitute a material violation of any Hatteras Seller and will be binding on any successor theretoLaw; and (ii) subject each Management Stockholder, jointly and severally, hereby agrees to this Section 11.17defend, may be exercised by Sellers’ indemnify and hold harmless the Management Representative acting by signing as Sellers’ Representative and its Affiliates and each of their respective officers, directors, employees and agents from and against all expenses (including fees and expenses of counsel) losses, claims, fines, liabilities, damages, judgments or amounts paid in settlement in respect of any Hatteras Sellerthreatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on, arising out of or relating to the fact that such Person is or was a Management Representative hereunder or arising out of acts or omissions of such Person in such capacity occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated hereby) except for, in any case, acts or omissions which involve conduct known to such Person at the time to constitute a material violation of Law; and (iii) each ▇▇▇▇▇ Stockholder and Third Party Stockholder, jointly and severally, hereby agrees to defend, indemnify and hold harmless the Stockholder Representative and its Affiliates and each of their respective officers, directors, employers and agents from and against all expenses (including fees and expenses of counsel) losses, claims, fines, liabilities, damages, judgments or amounts paid in settlement in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on, arising out of or relating to the fact that such Person is or was a Stockholder Representative hereunder or arising out of acts or omissions of such Person in such capacity occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated hereby) except for, in any case, acts or omissions which involve conduct known to such Person at the time to constitute a material violation of Law.
(ce) If Buyer Holdings and Buyer agree that each of the Sellers’ ' Representative, the Stockholder Representative and the Management Representative is serving in such capacity solely for purposes of administrative convenience, and shall not be personally liable in such capacity for any of the obligations of Sellers hereunder, and Buyer Holdings and Buyer agree that they will not look to the personal assets of the Sellers' Representative, the Stockholder Representative or its successors the Management Representative, in each case, acting in such capacity, for the satisfaction of any obligations to be performed by Sellers hereunder. Each Seller agrees that Buyer Holdings and permitted assignsBuyer shall be entitled to rely upon the power and authority of the Sellers' Representative, the Stockholder Representative or the Management Representative, as the case may be, advise the Hatteras Sellers that it is unavailable acting in such capacity, to perform it duties hereunder, within thirty (30) days of notice of act on such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed)Seller's behalf. Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively Buyer Holdings and absolutely rely, without inquiry, Buyer and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and their respective successors shall not be liable to any Seller for any Losses ofactions taken or omitted by them in reliance upon any instructions, any third Person, any Party notices or to any Indemnified Party in connection with any obligations, actions or failure to act of other instruments delivered by the Sellers’ ' Representative, the Stockholder Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyManagement Representative, as the case may be.
Appears in 1 contract
Sellers’ Representative. (a) Each ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is hereby constituted and appointed by the Sellers and the UPC Stockholders as agent (the “Sellers Representative“) for and on behalf of the Hatteras Sellers hereby irrevocably constitutesand the UPC Stockholders, designates with full and appointsunqualified power to delegate to one or more Persons the authority granted to him hereunder, authorizes to act as each of their agent and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfact, with full power of substitution or resubstitutionsubstitution, to perform take all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated actions called for by this Agreement and the other Transaction Documents Ancillary Agreements, on their individual and collective behalf, as such Sellers Representative shall deem necessary and appropriate in connection with the transactions contemplated hereby and therebyunder this Agreement, which includes including, without limitation, the power and authority topower:
(i) to execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents necessary required or desirable permitted to carry out be given in connection with the intent consummation of the transactions contemplated by this Agreement and any other Transaction DocumentAgreement;
(ii) determine whether to give and receive all notices and communications to be given or received under this Agreement or the conditions Ancillary Agreements and to Closing receive service of process in Article VII have been satisfiedconnection with any claims under this Agreement or the Ancillary Agreements;
(iii) serve as the named party (not in his individualto agree to, but solely in his representative capacity) negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any claim for indemnification by any Purchaser Indemnitee such claims, and to resolve such claims as Sellers’ take all actions necessary or appropriate in the judgment of the Sellers Representative in its sole discretion deems appropriate;for the accomplishment of the foregoing; and
(iv) give and receive any and to take all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers actions which under this Agreement and the Transaction Documents Ancillary Agreements may be taken by the Sellers Representative and to do or refrain from enforcing doing any right of the Hatteras Sellers further act or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act deed on behalf of the Hatteras Sellers with respect to any claims against Purchaser or UPC Stockholders that the Sellers Representative deems necessary or appropriate in his sole discretion relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent subject matter of this Agreement as fully and any other Transaction Document, and to amend completely as such Sellers or supplement any of the foregoingUPC Stockholders could do if personally present. All of decisions and acts by the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Sellers Representative shall be binding upon all of the only person authorized Sellers and UPC Stockholders and no Seller or UPC Stockholder shall have the right to take any action so requiredobject, authorized dissent, protest or contemplated by this Agreement by any Hatteras Seller and, without otherwise contest the same. Without limiting the generality of the foregoing, Purchaser shall be required to provide notices any notice delivered by the Buyers to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be treated as having been delivered to each Hatteras Seller’s agent for service Seller and UPC Stockholder entitled thereto, regardless of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action actions taken by Sellers’ the Sellers Representative in the name following receipt of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsnotice.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled Buyers shall be entitled to deal exclusively with an interest and is being granted, in part, as an inducement the Sellers Representative on all matters relating to the Parties to enter into this Agreement and will the Ancillary Agreements, and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation entitled to rely conclusively (without further evidence of any Hatteras Seller and will be binding kind whatsoever) on any successor thereto; and (ii) subject document executed or purported to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative executed on behalf of any Hatteras SellerSeller or UPC Stockholder by the Sellers Representative, and on any other action taken or purported to be taken on behalf of the Sellers or UPC Stockholders by the Sellers Representative, as fully binding upon such Sellers or UPC Stockholders.
(c) In the event of the death or permanent disability of the Sellers Representative, or his resignation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, if alive and at his election, will be the successor to the Sellers Representative. If Sellers’ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is not the successor, a successor to the Sellers Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will shall be appointed by a majority vote of the remaining Principals; providedUPC Stockholders, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of with each such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not UPC Stockholder to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebygiven an equal vote.
Appears in 1 contract
Sources: Asset Purchase Agreement (Remy International, Inc.)
Sellers’ Representative. (a) Each By the execution and delivery of the Hatteras Sellers this Agreement, each Seller hereby irrevocably constitutesconstitutes and appoints ▇▇▇▇▇▇ ▇▇▇▇ (in such capacity, designates and appoints, authorizes and empowers the “Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative”) as its, his or her the true and lawful agent and attorney-in-fact and agent, of such Seller with full power powers of substitution or resubstitutionto act in the name, place and stead of thereof with respect to perform all such acts (or to omit from taking any action), the performance on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller under the terms and provisions of this Agreement and the other Transaction Documents Ancillary Documents, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Seller, if any, as the Sellers’ Representative will deem necessary or appropriate in connection with any of the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
of the Ancillary Documents, including: (i) agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price; (ii) direct the distribution of the Purchase Price among Sellers; (iii) act for Sellers with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of Sellers any indemnification claim made by or against Sellers, if any; (iv) act for Sellers with respect to all post-Closing matters; (v) terminate, amend or waive any provision of this Agreement; provided, that any such action, if material to the rights and obligations of Sellers in the reasonable judgment of the Sellers’ Representative, will be taken in the same manner with respect to all Sellers unless otherwise agreed by each Seller who is subject to any disparate treatment of a potentially adverse nature; (vi) make employ and obtain the advice of legal counsel, accountants and other professional advisors as the Sellers’ Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Sellers’ Representative and to rely on their advice and counsel; (vii) incur and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viii) receive all or any portion of the Purchase Price and to distribute the same to Sellers according to this Agreement; (ix) sign any releases or other elections documents with respect to and dispute or decisions contemplated by remedy arising under this Agreement or the Ancillary Documents; and (x) do or refrain from doing any other Transaction Document;
(vii) approve waivers, clarifications further act or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder deed on behalf of Sellers which the Hatteras Sellers for distribution Sellers’ Representative deems necessary or appropriate in his or her sole discretion relating to the Hatteras Sellers;
(ix) to enforce and protect the rights subject matter of the Hatteras Sellers under this Agreement as fully and the Transaction Documents completely as any Seller could do if personally present and to refrain from enforcing any right of the Hatteras Sellers acting. The Sellers’ Representative hereby accepts his or her appointment and authorization as the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant appointment of authority provided for in this Section 11.18: (i) is the Sellers’ Representative will be deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable irrevocable, and survive the deathany other Person, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principalincluding Buyer, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include Company and any duly appointed successor Sellers’ Representative. Purchaser other Buyer Indemnified Parties may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the any actions of the Sellers’ Representative as the actions acts of each Hatteras Seller in all matters referred Sellers hereunder or any Ancillary Document to in this Section 11.18which it they are a party. Each Hatteras Buyer Indemnified Party shall be entitled to rely conclusively on the instructions and decisions of the Sellers’ Representative as to (i) the settlement of any claims for indemnification by a Buyer Indemnified Party pursuant to ARTICLE VIII hereof, (ii) any payment instructions provided by the Sellers’ Representative or (iii) any other actions required or permitted to be taken by the Sellers’ Representative hereunder, and no Seller hereby authorizes the other Parties hereto to disregard Indemnified Party shall have any notice delivered or other cause of action against any Buyer Indemnified Party for any action taken by a Buyer Indemnified Party in reliance upon the instructions or decisions of the Sellers’ Representative. No Buyer Indemnified Party shall have any Hatteras liability to Sellers for any allocation or distribution among Sellers by the Sellers’ Representative of payments made to or at the direction of the Sellers’ Representative.
(c) The Sellers’ Representative will act for Sellers on all of the matters set forth in this Agreement in the manner the Sellers’ Representative believes to be in the best interest of Sellers, but the Sellers’ Representative will not be responsible to Sellers for any loss or damage that any Seller may suffer by reason of the performance by the Sellers’ Representative of such Sellers’ Representative’s duties under this Agreement, other than loss or damage arising from fraud, gross negligence or willful misconduct in the performance of the Sellers’ Representative’s duties under this Agreement. Sellers do hereby severally and not jointly agree to indemnify and hold the Sellers’ Representative harmless from and against any and all Losses reasonably incurred or suffered as a result of the performance of the Sellers’ Representative’s duties under this Agreement, except for any such liability arising out of the fraud, gross negligence or willful misconduct of the Sellers’ Representative. The Sellers’ Representative will be entitled to the payment from the Sellers of all his or her expenses incurred as the Sellers’ Representative. No bond shall be required of the Sellers’ Representative.
(d) If the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his or her responsibilities as agent of Sellers, then Sellers shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter (but in any event within two (2) Business Days after such appointment), shall notify Buyer in writing of the identity of such successor. Any such successor shall be appointed by the written consent of Sellers, and any successor so appointed shall become the “Sellers’ Representative” for purposes of this Agreement. A vacancy in the position of Sellers’ Representative may be filled by the vote of Sellers holding a majority in interest of the Escrow Accounts.
(e) All notices or other communications required to be made or delivered by Buyer to a Seller pursuant to this Agreement shall be made to the Sellers’ Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of Buyer to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Sellers’ Representative (except for a notice under Section 9.13(d) of the replacement of the Sellers’ Representative. The Parties acknowledge ).
(f) After the Closing, Buyer shall afford the Sellers’ Representative and agree its Representatives reasonable access (electronically to the greatest extent possible) during business hours and with prior notice to the Buyer, during the period from the date of receipt of a written notice for indemnity until all claims related to such notice are resolved to the books, records and working papers of Buyer and its Affiliates related to such indemnity claim, each of their respective personnel and any other information of Buyer or its Affiliates that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according reasonably requests relating to the terms of this Section 11.18. Accordinglysuch indemnity claims, the Parties acknowledge and agree that, in Buyer and its capacity as Sellers’ Representative, Affiliates shall cooperate with the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party its Representatives in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebytherewith.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras The Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoint the Sellers’ Representative (as agent and each successor appointed attorney in accordance with Section 11.18(c)) as its, his or her true fact for and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by the Sellers to (i) interpret the terms and provisions of this Agreement and the Ancillary Agreements (other Transaction Documents than the Employment Agreement), (ii) execute, deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with this Agreement, the Ancillary Agreements (other than the Employment Agreement) and the consummation of the transactions contemplated hereby hereby, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and therebycompromises of, assume the defense of any Proceedings, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Proceedings, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) make any determinations and settle any matters related to any Tax matters pursuant to Article IX, the matters contemplated by Section 2.9, (vii) administer, pay out, deduct, hold back or redirect any funds (including any Earnout Shares and/or Earnout Company Units), which includes may be payable or distributable to any Sellers pursuant to the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent terms of this Agreement or any Ancillary Agreement (other than the Employment Agreement) for, (A) any amount that may be payable by the Sellers pursuant to this Agreement, including Section 2.9 and Article IX or (B) any costs, fees, expenses and other Transaction Document;liabilities incurred by the Sellers’ Representative, acting in such capacity, in connection with this Agreement and the Ancillary Agreements (other than the Employment Agreement), and (viii) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf of the Sellers in connection with this Agreement and the Ancillary Agreements (other than the Employment Agreement).
(iib) determine whether The Sellers’ Representative, or any successor hereafter appointed, may resign at any time by written notice to the conditions Buyer and the Sponsor. Any change in the Sellers’ Representative will become effective upon notice to Closing the Buyer and the Sponsor in Article VII have been satisfied;accordance with this Section 11.3. The Sellers’ Representative so designated must be reasonably acceptable to the Buyer and the Sponsor, except that the Parties hereby agree that, subject to the Seller providing prior written notice to the Buyer and the Sponsor, any Seller will be acceptable to the Buyer and the Sponsor as a successor Sellers’ Representative. All power, authority, rights and privileges conferred in this Agreement to the Sellers’ Representative will apply to any successor Sellers’ Representative.
(iiic) serve as the named party (The Sellers’ Representative will not in his individual, but solely in his representative capacity) with respect to be liable for any claim for indemnification by any Purchaser Indemnitee and to resolve such claims act done or omitted under this Agreement as Sellers’ Representative while acting in its sole discretion deems appropriate;
(iv) give good faith, and receive any and all notices act taken or omitted to be taken pursuant to this Agreement the advice of counsel will be conclusive evidence of such good faith. The Buyer agrees that it will not look to the assets of the Sellers’ Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the RSI Companies or the Sellers, as the case may be. In performing any other Transaction Document;
(v) grant any consent, approval or waiver of its duties under this Agreement or any Ancillary Agreements (other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waiversthan the Employment Agreement), clarifications or post-Closing modifications the Sellers’ Representative will not be liable to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution any losses that any such Person may incur as a result of any act, or failure to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or act, by the Sellers’ Representative under this Agreement or any Ancillary Agreements (other than the Transaction Documents; providedEmployment Agreement), howeverand the Sellers’ Representative will be indemnified and held harmless by the Sellers for all losses, except to the extent that no such failure to act on the part actions or omissions of the Sellers’ Representative constituted fraud, gross negligence or willful misconduct. The limitation of liability provisions of this Section 11.3(c) will survive the termination of this Agreement and the resignation of the Sellers’ Representative.
(d) The Buyer and the Sponsor shall be deemed a waiver entitled to rely exclusively upon any notices and other acts of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services relating to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee rights and obligations hereunder as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, being legally binding acts of each Seller individually and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignscollectively.
(be) The grant of authority provided providing for in this Section 11.18: 11.3 (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Sellershall survive the Closing.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Business Combination Agreement (dMY Technology Group, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Other Stockholder Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints the Principal Seller (“Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative”) as itssuch Other Stockholder Sellers’ representative, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitutionto act in the name, place and stead of such Seller with respect to perform all such acts (or this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement, and to omit from taking any action), act on behalf of each such Hatteras SellerSeller in any amendment of or litigation or arbitration involving this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as are requiredsuch Sellers’ Representative shall deem, authorized in consultation with ▇▇▇▇ ▇▇▇▇, necessary or contemplated by appropriate in conjunction with any of the Contemplated Transactions, this Agreement Agreement, the Escrow Agreement, the Escrow Note and the other Transaction Documents and Lock-Up Agreement, including the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute and deliver to take all documents action necessary or desirable in connection with the waiver of any condition to carry out the intent obligations of the Sellers to consummate the transactions contemplated by this Agreement Agreement, the Escrow Agreement, the Escrow Note and any other Transaction Documentthe Lock-Up Agreement;
(ii) determine whether to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, consents, amendments and other documents required or permitted to be given in connection with the conditions consummation of the transactions contemplated by this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement (it being understood that such Seller shall execute and deliver any such documents which Sellers’ Representative agrees to Closing in Article VII have been satisfiedexecute);
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee give and receive all notices and communications to be given or received under this Agreement and to resolve such receive service of process in connection with the any claims as Sellers’ Representative under this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement, including service of process in its sole discretion deems appropriateconnection with arbitration;
(iv) give to take all actions which under this Agreement, the Escrow Agreement, the Escrow Note and receive the Lock-Up Agreement may be taken by such Seller and to do or refrain from doing any further act or deed on behalf of the such Seller which Sellers’ Representative deems necessary or appropriate in their sole discretion relating to the subject matter of this Agreement, the Escrow Agreement, the Escrow Note and all notices pursuant to this Lock-Up Agreement or any other Transaction Document;as fully and completely as such Seller could do if personally present; and
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make to receive all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications amounts paid to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement the Escrow Note and distribute each Seller’s share of such amounts received to each Seller as set forth on Schedule 2.2(b) attached hereto; and
(vi) to be and act as the secured party under each Note and the Escrow Note.
(b) Sellers’ Representative shall not incur any liability to the Sellers with respect to any action taken or suffered by it or omitted hereunder as Sellers’ Representative while acting in good faith and in the Transaction Documents; providedexercise of reasonable judgment. Sellers’ Representative may, howeverin all questions arising hereunder, that no such failure to act rely on the part advice of counsel and other professionals and for anything done, omitted or suffered in good faith by Sellers’ Representative based on such advice, and Sellers’ Representative shall not be liable to anyone.
(c) A decision, act, consent or instruction of the Sellers’ Representative shall constitute a decision, act, consent or instruction from all of the Sellers, and shall be deemed a waiver final, binding and conclusive upon each of the Sellers. The Corporation and Buyer may rely upon any such right decision, act, consent or interest instruction of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by as being the Sellers’ Representative;decision, act, consent or instruction of every Seller.
(xd) review Notwithstanding the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereofabove, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services may not amend this Agreement, the Escrow Agreement, the Escrow Note or the Lock-Up Agreement to the Sellers’ Representative;
(xiiii) resolve create any personal liability of any Sellers hereunder or otherwise defend any Purchaser Indemnitee as described hereinthereunder, acting in good faith, including (Aii) to resolve a disputed claim for increase the maximum aggregate indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf obligation of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement beyond the Indemnity Cap or the Transaction Documents; and
(xviii) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized pursuant hereto that could disproportionately affect any Seller or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality group of the foregoing, Purchaser shall be required to provide notices Sellers relative to the Hatteras other Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to without the prior written consent of Purchaser such affected Seller or group of the Sellers.
(not e) If the Principal Seller becomes unable or no longer desires to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to serve as Sellers’ Representative shall such other Person or Persons as may be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt designated by a majority-in-interest of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity shall succeed as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller Party agrees that Innovated Assets, LLC is hereby irrevocably constitutes, designates constituted and appoints, authorizes appointed as agent and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, as the “Sellers’ Representative” with full power and right of substitution or resubstitution, to perform all such acts (or to omit from taking any action), for and on behalf of each such Hatteras SellerSeller Party, as are required, authorized or contemplated by this Agreement with the sole and the other Transaction Documents exclusive right and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) on behalf of each of them to execute and deliver any and all certificates and other documents necessary or desirable required to carry out the intent be executed and delivered by any Seller Party hereunder, to give and receive notices and communications hereunder, to make claims against Buyer hereunder, to agree to, object to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, without limitation, claims arising under Article VIII of this Agreement and disputes arising under Article II of this Agreement, to make amendments and grant waivers hereunder or any other Transaction Ancillary Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as take all actions necessary or appropriate in the judgment of Sellers’ Representative in its sole discretion deems appropriate;
(iv) give for the accomplishment of the foregoing and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or actions that the Sellers’ Representative under this Agreement or may, in his sole discretion, determine to be appropriate in connection with the Transaction Documents; provided, however, that no such failure to act on the part consummation of the purchase and sale of the Purchased Interests or any of the other Transactions, including authorizing the delivery to Buyer of cash from the Escrow Fund in satisfaction of any amounts owed to Buyer pursuant to Article VIII and Article II of this Agreement. No bond shall be required of Sellers’ Representative, and Sellers’ Representative shall be deemed a waiver of such right receive no compensation for services rendered. Notices or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant communications to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The from Sellers’ Representative shall be constitute notice to or from the only person authorized to take any action so requiredCompany and each Seller Members, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representativeas applicable. The Sellers’ Representative shall be each Hatteras Seller’s agent for service Seller Members agree and acknowledge that the power of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for attorney granted in this Section 11.185.07: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor theretoirrevocable; and (ii) subject to this Section 11.17, may be exercised delegated by the Sellers’ Representative acting by signing as Representative. In the event of the death, incapacity or resignation of Innovated Assets, LLC, then, the remaining Seller Members shall jointly elect a new Sellers’ Representative Representative. A decision, act, consent or instruction of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent constitute a decision of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative all of Seller Members and shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively final, binding and absolutely rely, without inquiryconclusive upon each of such Parties, and until the receipt of Buyer may rely upon any written notice of a change of Sellers’ Representative under Section 11.18(c)decision, continue to relyact, without inquiry, upon the actions consent or instruction of Sellers’ Representative as being the actions decision, act, consent or instruction of each Hatteras Seller in of such Parties and Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant relating to this Agreement except (including Article VIII) or any of any Ancillary Document. Buyer is hereby relieved from any Liability to any person for any acts done by it in accordance with such decision, act, consent, or instruction of Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative shall, at the expense of the Hatteras Sellers according Seller Members, be entitled to the terms of this Section 11.18. Accordinglyengage such counsel, the Parties acknowledge experts and agree that, in its capacity other agents and consultants as Sellers’ Representative shall deem necessary in connection with exercising his powers and performing his function hereunder and (in the absence of willful misconduct on the part of Sellers’ Representative, ) shall be entitled to conclusively rely on the opinions and advice of such Persons. Sellers’ Representative shall have no liability to, and shall not be liable to any of Seller Members for any Losses ofactions taken by him in his capacity as Sellers’ Representative (in the absence of willful misconduct). Each Seller Party will severally indemnify Sellers’ Representative and hold Sellers’ Representative harmless against any loss, any third Person, any Party Liability or to any Indemnified Party expense incurred without willful misconduct on the part of Sellers’ Representative and arising out of or in connection with the acceptance or administration of Sellers’ Representative duties hereunder, including each Seller Party’s respective share of the reasonable fees and expenses of any obligations, actions or failure to act legal counsel retained by Sellers’ Representative and including any Escrow Indemnification Liabilities of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyRepresentative.
Appears in 1 contract
Sellers’ Representative. (a) Each At the Closing, without further act of the Hatteras Sellers hereby irrevocably constitutesany Seller, designates and appoints, authorizes and empowers the Sellers’ Representative (is hereby irrevocably appointed as agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, (with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of for each such Hatteras Seller, as are required, authorized or contemplated by this Agreement ) for and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers Seller Parties, to give and receive notices and communications, to authorize delivery to any Indemnified Party of cash in satisfaction of claims to any Indemnified Party for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights any breach of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right a representation or warranty in Article III of the Hatteras Sellers or the Sellers’ Representative under this Agreement or breach of covenant or agreement to be performed by the Transaction DocumentsSeller Parties contained in this Agreement to be performed at or prior to Closing (a “Buyer Claim”); provided(i) to object to such deliveries, howeverto retain and appoint advisors and to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to negotiate and execute any waivers or amendments of this Agreement (provided that no any such failure waiver or amendment that is materially and disproportionately adverse to act on any Seller shall also require the part written consent of such Seller, as applicable), (ii) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative shall be deemed a waiver for the accomplishment of such right or interest the foregoing and in the defense of any Hatteras Seller or Buyer Claim and any adjustment to the Purchase Price to be made pursuant to Section 2.08 of this Agreement, and (iii) to take all other actions which under this Agreement may be taken by the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action do or otherwise refrain from doing any further act or deed on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or Seller which Sellers’ Representative deems necessary or appropriate in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted relating to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this AgreementSubject Transactions as fully and completely as such Seller could do if personally present. The Sellers’ Representative may resign from such position at any time upon written notice to Buyer, and shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The appoint a replacement Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect on written notice to any disputes regarding or arising out of this Agreement or Buyer. In the transactions contemplated hereby. Any action taken by event that the Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, does not appoint a replacement within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principalresignation, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change position of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions may be filled by approval of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative . No bond shall be required of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, and the Sellers’ Representative shall have no liability to, and not receive compensation for its services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each of the Sellers. The death or incapacity of any Seller shall not be liable for any Losses ofterminate the agency and power of attorney granted hereby to the Sellers’ Representative.
(b) A decision, any third Personact, any Party consent or to any Indemnified Party in connection with any obligations, actions or failure to act instruction of the Sellers’ Representative shall constitute a decision, act, consent or instruction of all the Seller Parties, with respect to the matters set forth in this Section 11.13 and shall be final, binding upon and conclusive with respect to each of such Seller, and Buyer may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of each and every Seller. Buyer is hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction of the Sellers’ Representative. Buyer shall be entitled to disregard any decisions or communications or writing made, given or executed by any Seller in connection with this Agreement unless the same is made, given or executed by the Sellers’ Representative in its capacity as such, and shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to this Agreement.
(c) All reasonable out-of-pocket fees and expenses (including fees payable to counsel, accountants and other professional fees) incurred by the Sellers’ Representative in connection with performing such function and in connection with the Subject Transactions and all payments, damages, costs, fees and expenses in connection with any dispute between the Sellers’ Representative and the Seller Parties under this Agreement or otherwise in respect of this Agreement or shall be paid by the transactions contemplated herebySeller Parties.
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Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutesappoints Clean Streak Ventures Holdco, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) LLC as its, his or her true agent and lawful attorney-in-fact fact, as Sellers’ Representative for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by the Sellers relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority toTransactions:
(i) execute to give and deliver all documents necessary or desirable to carry out the intent of this Agreement receive notices and any other Transaction Document;communications,
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or the transactions contemplated hereby. Any action taken by any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative in the name of may deem necessary or on behalf of any Hatteras Seller appropriate in connection with any matter arising under this Agreement in accordance the Transactions. Such agency and proxy are coupled with this Section 11.18 an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall be binding upon such Hatteras Seller and its heirssurvive the death, representativesincapacity, successors and permitted assignsbankruptcy, dissolution or liquidation of each Seller.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, Such agency may be exercised changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative acting may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by signing each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of any Hatteras Sellerits obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the prior written consent of Purchaser Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (not to be unreasonably withheld, conditioned or delayedthe “Charges”). Any references in this Agreement If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall be deemed have the right to include any duly appointed successor setoff Sellers’ Representative. Purchaser ’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely absolutely, rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without any inquiry, upon the actions any such decision, act, consent or instruction of Sellers’ Representative as being the actions decision, act, consent or instruction of each Hatteras Seller the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered accordance with or other action taken by any Hatteras Seller pursuant to this Agreement except for reliance on such decision, act, consent or instruction of Sellers’ Representative. The Parties acknowledge and agree that .
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative is a party to this Agreement solely in its role of representative for the benefit of the Hatteras Sellers according and any notices so made shall discharge in full all notice requirements of Buyer to the terms Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of this Section 11.18. Accordingly, the Parties acknowledge such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree that, to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative, the .
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement any action, claim or proceeding brought against any such Person by any Seller, regardless of the transactions contemplated herebylegal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sellers’ Representative. (a) Each of At the Hatteras Sellers hereby irrevocably constitutesClosing, designates each Seller agrees that Vista Equity Partners Management, LLC shall be constituted and appoints, authorizes and empowers appointed as the Sellers’ Representative (Representative. Pursuant to the terms of the applicable Holdings Equity Agreement, each Consideration Recipient will constitute and each successor appointed in accordance with Section 11.18(c)) appoint Vista Equity Partners Management, LLC, as itsthe Sellers’ Representative. For purposes of this Agreement, his or her the term “Sellers’ Representative” shall mean the representative, true and lawful agent, proxy and attorney in fact of the Consideration Recipients for all purposes of this Agreement and the Purchase Price Adjustment Escrow Agreement, with full power and authority on such Consideration Recipients’ behalf (i) to consummate the transactions contemplated herein, (ii) to pay such Consideration Recipients’ expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to pay, receive, give receipt and disburse any funds received hereunder on behalf of or to such Consideration Recipients and to hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Shares or Holdings Shares and execution of such further instruments as Purchaser shall reasonably request, (v) to execute and deliver on behalf of such Consideration Recipients all documents contemplated herein and any amendment or waiver hereto, (vi) to prepare, deliver and receive any notices on behalf of the Consideration Recipients contemplated by this Agreement, (vii) to take all other actions to be taken by or on behalf of the Consideration Recipients in connection herewith, (viii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding the Working Capital Amount and any adjustment pursuant to Section 1.5 and any Indemnification Claim made pursuant to Section 9.3(a)(ii), (ix) to waive any condition to the obligation of Sellers to consummate the transactions contemplated herein, (x) to give and receive notices on behalf of the Consideration Recipients and (xi) to do each and every act and exercise any and all rights which such Consideration Recipient is, or the Consideration Recipients collectively are, permitted or required to do or exercise under this Agreement. The Consideration Recipients, by approving the principal terms of the Share Purchase, executing this Agreement or the Holdings Equity Agreements and/or accepting the consideration payable to them hereunder or thereunder, irrevocably grant unto said attorney-in-fact and agent, with agent full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute to do and deliver all documents perform each and every act and thing necessary or desirable to carry out be done in connection with the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions transactions contemplated by this Agreement Agreement, as fully to all intents and purposes as the Consideration Recipients might or any other Transaction Document;
(vii) approve waiverscould do in person. Each Consideration Recipient agrees that such agency and proxy are coupled with an interest, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce are therefore irrevocable without the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part consent of the Sellers’ Representative and shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, incapacity or bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerConsideration Recipient.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
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Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates appoints BWC (“Sellers’ Representative”) as the sole representative of Sellers to act as the agent and appoints, authorizes on behalf of Sellers regarding any matter relating to or under this Agreement or the other Transaction Documents from and empowers after the date hereof. Until the delivery of written notice of appointment of a successor Sellers’ Representative (reasonably acceptable to Purchasers under this Section 12.18, Sellers’ Representative shall serve as agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for each Seller, for and agenton behalf of each Seller, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute to represent, in its sole reasonable discretion, each Seller and deliver such Seller’s successors and assigns with respect to all documents necessary or desirable to carry out the intent of matters arising under this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing Documents and, except as otherwise provided in Article VII have been satisfied;
(iii) serve as the named party (not in his individualthis Agreement, but solely in his representative capacity) with respect to any claim for indemnification all actions taken by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents will be binding upon each Seller and to refrain from enforcing any right such Seller’s successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the Hatteras Sellers or the foregoing, and except as otherwise provided in this Agreement, Sellers’ Representative has full power and authority, on behalf of each Seller and such Seller’s successors and assigns, to interpret the terms and provisions of this Agreement and the Transaction Documents, to dispute or fail to dispute any claim under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement negotiate and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of compromise any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser that may arise under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
Documents (xv) perform each including with respect to adjustments to Net Working Capital, Cash, Indebtedness and Transaction Expenses), to sign any releases or other documents with respect to any such act dispute, and thing whatsoever that Sellers’ Representative may be or is required to doagree to and sign any amendments, waivers, or other documents in connection with the consummation of the transactions contemplated by this Agreement and the Transaction Documents. A Seller will be deemed a party or a signatory to any contract, document, instrument or certificate for which Sellers’ Representative in its sole discretion determines is desirable signs on behalf of such Seller. All decisions, actions and instructions by Sellers’ Representative, including the defense or settlement of any claims for which Seller may be required to do, indemnify the Purchasers pursuant to or to carry out the intent of this Agreement Section 10.1, will be conclusive and any other Transaction Documentbinding on each Seller, and no Seller has the right to amend object, dissent, protest or supplement otherwise contest the same. Each Seller shall pay and indemnify and hold harmless the Purchaser Indemnified Parties from and against any Losses that they may suffer or sustain as the result of any claim by such Seller or any of the foregoing. All of the indemnities, immunities and powers granted to the its Affiliates that an action taken by Sellers’ Representative under this Agreement shall survive on behalf of the Closing Date Seller is not binding on, or termination enforceable against, any Seller, except to the extent such Losses are the result of the gross negligence or willful misconduct of any Purchaser. Except as otherwise provided in this Agreement. The , Purchasers have the right to rely conclusively on the instructions and decisions of Sellers’ Representative shall as to the settlement of any claims for indemnification by Purchasers pursuant to Section 10.1, or any other actions required or permitted to be the only person authorized to take taken by Sellers’ Representative hereunder, and no Seller will have any cause of action against Purchasers for any action so required, authorized taken by Purchasers in reliance upon the instructions or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality decisions of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in pursuant to the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for granted in this Section 11.18: (i) 12.17 is coupled with an interest effective and is being grantedabsolutely binding on each Seller notwithstanding any contrary action of or direction from such Seller. The liquidation, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy death or liquidation incapacity of any Hatteras Seller does not terminate the authority and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by agency of Sellers’ Representative acting by signing as Sellers’ Representative (or successor thereto). The provisions of any Hatteras Seller.
(c) If Sellers’ Representative or its this Section 12.18 are binding upon the successors and permitted assignsassigns of each Seller, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any and any references in this Agreement to Sellers’ Representative shall be deemed a Seller means and includes the successors to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely relysuch Seller’s rights hereunder, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller whether pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role any agreement, operation of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party law or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyotherwise.
Appears in 1 contract
Sources: Membership Interest, Share and Asset Purchase Agreement (Babcock & Wilcox Enterprises, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers The Seller Representative is hereby irrevocably constitutes, designates constituted and appoints, authorizes appointed as agent and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser shall be required the Seller Representative has full power and authority, on behalf of each Seller and its, his or her successors and assigns, to provide notices to (i) interpret the Hatteras Sellers pursuant to terms and provisions of this Agreement solely and the Related Documents, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for given in connection with the consummation of the transactions contemplated by this Agreement and the Related Documents, (iii) receive service of process in connection with any claims under this Agreement, the Related Documents or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of such claims, assume the defense of claims, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing, (v) make any disputes regarding payment or arising out of pay any expenses under or in connection with this Agreement and any Related Document, (vi) give and receive notices and communications, (vii) authorize delivery to any Buyer Indemnitee of the Escrow Funds or any portion thereof, (viii) object to such deliveries, (ix) distribute the transactions contemplated hereby. Any action taken by Sellers’ Representative Escrow Funds and any earnings and proceeds thereon, and (x) take all actions necessary or appropriate in the name judgment of or the Seller Representative on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirsthe Escrow Agreement, representativesincluding, successors without limitation, entering into amendments hereof and permitted assignsthereof.
(b) The grant of authority provided Seller Representative shall not be liable to any Seller for any act done or omitted under this Agreement as Seller Representative while acting in this Section 11.18: (i) is coupled with an interest good faith, and is being granted, in part, as an inducement any act taken or omitted to be taken pursuant to the Parties to enter into this Agreement and will advice of counsel shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation conclusive evidence of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Sellersuch good faith.
(c) If Sellers’ Representative or its successors From and permitted assignsafter the Closing Date, as Buyer and the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative Escrow Agent shall be subject entitled to deal exclusively with the Seller Representative on all matters pertaining to the prior written consent rights and obligations of Purchaser Seller (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt each of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative them) under this Agreement and the Escrow Agreement. A decision, act, consent or otherwise in respect instruction of the Seller Representative constitutes a decision of each Seller. Such decision, act, consent or instruction is final, binding and conclusive upon each Seller and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Seller Representative for all purposes of this Agreement and the Escrow Agreement. Notices or communications to or from the transactions contemplated herebySeller Representative shall constitute notice to or from each Seller for all purposes of this Agreement and the Escrow Agreement. If the Seller Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities hereunder, then the Seller by [majority vote] shall promptly appoint a successor to the Seller Representative. In addition, the Seller (including the Seller Representative) may replace the Seller Representative from time to time pursuant to a written consent executed by Combe. Any successor to the Seller Representative shall become the “Seller Representative” for all purposes under this Agreement, effective upon written notice given to Buyer and the other parties hereto.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Unique Fabricating, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the appoints ----------------------- ▇▇▇▇▇▇ Capital Corporation ("Sellers’ Representative ' Representative") or its designee (and each successor as ----------------------- appointed in accordance with Section 11.18(cwriting)) , as itsthe agent, his or her true proxy, and lawful attorney-in-fact and agent, with for the Sellers for all purposes under this Agreement (including without limitation full power and authority to act on the Sellers' behalf) to take any action, should it elect to do so in its sole discretion, (i) to consummate the transactions contemplated under this Agreement, (ii) in the event of substitution or resubstitutionsuch consummation, to perform all such acts (or to omit from taking any action), receive on behalf of the Sellers each of such Hatteras Seller's Cash Consideration, as are required(iii) to pay out of each Seller's Cash Consideration his or its Seller's Percentage of all costs, authorized expenses and fees incurred by or on behalf of the Sellers in connection with the transactions contemplated by this Agreement and to pay to the Sellers his or its Seller's Percentage of the Cash Consideration, (iv) to conduct or cease to conduct, should it elect to do so in its sole discretion, the defense of all claims against any of the Sellers in connection with this Agreement other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(ithan claims under 11.1.1(i) execute and deliver all documents necessary or desirable to carry out the intent 11.1.1(iii) of this Agreement Agreement, and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve settle all such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give on behalf of all the Sellers and receive exercise any and all notices pursuant rights which the Sellers are permitted or required to do or exercise under this Agreement or any other Transaction Document;
Agreement, and (v) grant any consentto execute and deliver, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waiversshould it elect to do so in its sole discretion, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution any amendment to the Hatteras Sellers;
(ix) this Agreement so long as such amendments shall apply to enforce all parties to this Agreement, and protect the rights to take all other actions to be taken by or on behalf of the Hatteras Sellers and exercise any and all rights which the Sellers are permitted or required to do or exercise under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction DocumentsAgreement; provided, however, that no such failure to act on the part of (a) the Sellers’ ' Representative -------- ------- shall be deemed a waiver have no authority to enter into any settlement of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X clause (iv) above or to execute and deliver any amendment to otherwise have power and authority to institute legal action or otherwise act this Agreement under clause (v) above on behalf of above Sellers (the Hatteras Sellers with respect "Individual Sellers") other ------------------ than MLA I, MLA II, MLA III, SLA I, SLA II and BCC ISI (collectively, the "BCC --- Sellers"), without the consent of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (b) the Sellers' ------- Representative shall have no obligation to conduct any claims against Purchaser relating to this Agreement defense or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be settle any claim or is required to do, enter into any amendment or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and take any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or whatsoever on behalf of any Hatteras Seller in connection with any matter arising under this Agreement Section 14.6 or otherwise in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing capacity as Sellers’ ' Representative of any Hatteras Seller.
and (c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered settlement entered into or other action taken by any Hatteras Individual Seller pursuant shall be valid only to the extent expressly permitted by this Agreement except for Section 14.6, and no such settlement or action (whether permitted or not by this Section 14.6) shall bind or otherwise affect the rights or obligations of the Seller's Representative or any BCC Seller. Each of the Sellers hereby agrees not to assert any claim against, and to indemnify and hold harmless Sellers’ Representative. The Parties acknowledge ' Representative from and agree that against any and all Losses incurred by, the Sellers’ ' Representative is a party to this Agreement solely in or any of its role partners, directors, officers, employees, agents, stockholders, consultants, investment bankers, representatives or controlling persons, or any Affiliate of representative any of the Hatteras Sellers according foregoing, relating to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its Sellers' Representative's capacity as Sellers’ ' Representative other than such claims or Losses resulting from the Sellers' Representative's gross negligence or wilful misconduct.
(b) Each Seller hereby unconditionally and irrevocably agrees to pay to the Sellers' Representative, promptly upon request and in any event within 10 days of such request, such Seller's Percentage of any amounts paid by the Sellers’ ' Representative shall have no liability to, on behalf of the Sellers and shall not be liable for agrees to pay its Seller's Percentage of any Losses of, any third Person, any Party or to any Indemnified Party and all costs and expenses (including counsel and legal fees and expenses) incurred by the Sellers' Representative in connection with the protection, defense, expense or enforcement of any obligations, actions or failure to act of the Sellers’ Representative rights under this Agreement Agreement. Any and all payments made by any Sellers under this Section 14.6 shall be made free and clear of any present or otherwise in future taxes, deductions, charges or withholdings and all liabilities with respect of this Agreement or the transactions contemplated herebythereto.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates appoints ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Sellers’ Representative”) (and appoints, authorizes and empowers by the execution of this Agreement as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby accept of his appointment) as itssuch Seller’s representative, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitutionto act in the name, place and stead of such Seller with respect to perform all the transfer of such acts (or Seller’s Shares and Shareholders’ Loans in accordance with the terms and provisions of this Agreement and the other Transaction Documents, and to omit from taking any action), act on behalf of each such Hatteras SellerSeller in any amendment of or litigation or arbitration involving this Agreement and the other Transaction Documents and to do or refrain from doing all such further acts and things, and to execute all such documents, as are required, authorized such Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the Transactions contemplated by this Agreement and the other Transaction Documents and Documents, including the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute and deliver to take all documents action necessary or desirable in connection with the waiver of any condition to carry out the intent obligations of the Sellers to consummate the Transactions contemplated by this Agreement and any the other Transaction DocumentDocuments;
(ii) determine whether to negotiate and execute all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the conditions consummation of the Transactions (it being understood that such Seller shall execute any such documents which the Sellers’ Representative agrees to Closing in Article VII have been satisfiedexecute);
(iii) serve as to terminate this Agreement if the named party (not in his individual, but solely in his representative capacity) with respect Sellers are entitled to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriatedo so;
(iv) to give and receive any and all notices pursuant and communications to be given or received under this Agreement or any and the other Transaction DocumentDocuments and to receive service of process in connection with the any claims under this Agreement and the other Transaction Documents, including service of process in connection with any Legal Proceedings relating hereto or thereto;
(v) grant any consent, approval or waiver to take all actions which under this Agreement or any and the other Transaction DocumentDocuments may be taken by the Sellers and to do or refrain from doing any further act or deed on behalf of the Seller which the Sellers’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement and the other Transaction Documents as fully and completely as such Seller could do if personally present;
(vi) make all other elections authorize delivery to Purchaser Indemnified Parties of the applicable portion of the Purchase Price, Holdback Amount or decisions contemplated supplemental indemnification amounts, if any, in satisfaction of claims by this Agreement or any other Transaction Document;
(vii) approve waiversthem, clarifications or post-Closing modifications object to this Agreement or any other Transaction Document;
(viii) receivesuch deliveries, and enforce the right to receiveagree to, negotiate, defend, resolve, enter into settlements and compromises of, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers suit, proceeding, claim or the Sellers’ Representative dispute under this Agreement or the other Transaction DocumentsDocuments on behalf of the Sellers and comply with orders of courts and awards of arbitrators with respect to such claims; providedand
(vii) to take all actions necessary or appropriate in the judgment of the Sellerrs’ Representative for the accomplishment of any or all of the foregoing.
(b) If ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ becomes unable to serve as Sellers’ Representative, howeverincluding if he is no longer a resident of Israel, that no such failure other Person or Persons with an Israeli address as may be designated by the holders of a majority of the Pro Rata Share (the “Majority Holders”) and notified to act on the part Purchaser in writing upon not less than fifteen (15) days’ prior written notice, shall succeed as the Sellers’ Representative.
(c) The Sellers’ Representative shall not be liable to any Seller for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of its willful misconduct (which shall be deemed not to exist if the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting acted in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement). The Sellers’ Representative shall be the only person authorized to take any action so requiredmay consult with legal counsel, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller independent public accountants and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, experts and shall not be liable for any Losses ofaction taken or omitted to be taken in good faith in accordance with the advice of such counsel, accountants or experts. The Sellers’ Representative shall not have any third Person, any Party duty to ascertain or to inquire as to the performance or observance of any Indemnified Party of the terms, covenants or conditions of this Agreement. The Sellers shall, severally and not jointly, indemnify, defend and hold the Sellers’ Representative harmless against any Losses that may be incurred as such Losses are incurred by the Sellers’ Representative and arising out of or in connection with any obligations, actions the acceptance or failure to act administration of the Sellers’ Representatives duties hereunder. The Sellers shall be responsible for, and shall reimburse the Sellers’ Representative, upon demand, for, all reasonable expenses, disbursements and advances incurred or made by the Sellers’ Representative under in accordance with any of the provisions of this Agreement Agreement.
(d) Any and all decisions, acts, consents or otherwise instructions made or given by the Sellerrs’ Representative in respect of connection with this Agreement or the transactions contemplated herebyTransaction Documents shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each and every Seller, and the Purchaser shall be entitled to rely upon any such decision, act, consent or instruction of the Sellers’ Representative.
(e) Without duplicating or adding to the undertakings of any Seller hereunder, the Sellers’ Representative, in his capacity as Sellers' Representative, shall treat confidentially and, subject to any applicable Law, not disclose any nonpublic information from or about the Group Companies or Purchaser to anyone (except on a need to know basis to individuals (identified to the Company and Purchaser in writing in advance) who agree in writing to, or are bound by, confidentially.
Appears in 1 contract
Sellers’ Representative. (a) Each The Sellers’ Representative is hereby approved to serve as the representative of the Hatteras Sellers hereby irrevocably constitutesby virtue of (i) the approval of the Merger by the holders of Units (other than the Vista Blockers) in accordance with the Company LLC Agreement, designates and appointswithout further action of any such holders, authorizes (ii) the Vista Blocker Sellers’ execution and empowers delivery of this Agreement, with respect to the matters expressly set forth in this Agreement to be performed by the Sellers’ Representative and (iii) the execution of a Letter of Transmittal by each Unitholder Seller. Each of the Sellers hereby irrevocably appoints the Sellers’ Representative as the agent, proxy and attorney‑in‑fact for such Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf (a) to consummate the transactions contemplated herein, (b) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (c) to disburse any funds received hereunder to such Seller and each successor appointed other Seller (including, for the avoidance of doubt, under Article 2 hereof), (d) to execute and deliver any certificates representing the Company Group’s equity interests and execution of such further instruments as Purchaser or Merger Sub shall reasonably request, (e) to execute and deliver on behalf of such Seller any amendment or waiver hereto, (f) to take all other actions to be taken by or on behalf of such Seller in accordance with Section 11.18(c)connection herewith, (g) to negotiate, settle, compromise and otherwise handle any claims relating to the calculation of the Merger Consideration, the Initial Purchase Price and any other amounts payable hereunder, including any claims made by any indemnified party pursuant this Agreement, (h) to do each and every act and exercise any and all rights which such Seller is, or Sellers collectively are, permitted or required to do or exercise under this Agreement and (i) except as itsprovided for herein, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit refrain from taking any action), on behalf action to treat similarly situated Sellers materially and adversely differently from one another. Each of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement the Sellers irrevocably and unconditionally agrees (x) with the calculation of the Distribution Waterfall and the other Transaction Documents allocation and distribution of proceeds pursuant thereto and (y) to reimburse the transactions contemplated hereby Sellers’ Representative on a pro rata basis for any fees and thereby, which includes expenses incurred by the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to capacity as agent, proxy or attorney in fact of the Sellers in connection with this Agreement or any other Transaction Document;
(v) grant any consentthe transactions contemplated herein. At the Closing, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution Purchaser shall deliver to the Hatteras Sellers;
’ Representative an amount to be determined by the Representative, at its reasonable discretion (ixupon notice to Purchaser) (the “Sellers’ Representative Expense Fund”) to enforce be held in trust to cover and protect reimburse the rights of fees and expenses incurred by the Hatteras Sellers under Sellers’ Representative for its obligations in connection with this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part transactions contemplated herein. Any balance of the Sellers’ Representative Expense Fund not incurred for such purposes shall be deemed returned to the Sellers on a waiver pro rata basis as soon as reasonably practicable after payment of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice amount due to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with it from the Sellers’ Representative providing services Expense Fund. The grant of authority to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted Representative by any such Buyer Indemnified Party pursuant to Article Xthe Sellers is and shall be coupled with an interest and irrevocable and shall survive the Closing, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to all actions taken by the Sellers’ Representative under this Agreement shall survive be fully binding on the Sellers. Purchaser (and after the Closing Date any member of the Company Group) shall have the right to rely upon all actions taken or termination of this Agreement. The omitted to be taken by the Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative Agreement, all of which actions or omissions shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or legally binding on the transactions contemplated hereby. Any action taken by Sellers’ Representative in Sellers and the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsUnitholders.
(b) The grant of authority provided for in this Section 11.18: Sellers’ Representative represents and warrants to Purchaser and Merger Sub as follows:
(i) It is coupled with an interest duly organized, validly existing and is being granted, in part, as an inducement good standing under the laws of its jurisdiction of organization. It has all requisite power and authority to the Parties to enter into execute and deliver this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and perform its obligations under this Agreement.
(ii) subject to The execution and delivery by it of this Section 11.17Agreement and the performance by it of its obligations under this Agreement do not and will not conflict with or violate any provision of, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative or require the consent or approval of any Hatteras SellerPerson (except for such consents or approvals which have been obtained as of the date hereof) under (x) applicable laws, (y) its organizational documents or (z) any contract or agreement to which it is a party.
(ciii) If Sellers’ Representative or its successors The execution and permitted assigns, as the case may be, advise the Hatteras Sellers that delivery by it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any and the performance by it of its obligations under this Agreement have been duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in authorized by all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered necessary corporate or other analogous action taken on its part. This Agreement has been duly and validly executed and delivered by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is and constitutes a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordinglylegal, the Parties acknowledge valid and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act binding obligation of the Sellers’ Representative under this Agreement or otherwise in respect and, assuming the due execution and delivery of this Agreement by the other parties hereto, enforceable against the Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the transactions contemplated herebyenforcement of creditor’s rights generally and as limited by the availability of specific performance and other equitable remedies or applicable equitable principles (whether considered in a proceeding at law or in equity).
Appears in 1 contract
Sources: Stock Purchase and Merger Agreement (Global Payments Inc)
Sellers’ Representative. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ or such other persons identified by ECI Telecom Ltd. (a"ECI") Each in writing to the other parities hereto are hereby designated as the representatives of ECI for purposes of this Agreement and the Escrow Agreement and as agents and attorneys-in-fact of ECI with respect hereto and thereto (the "ECI Sellers' Representative"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is hereby designated as the representative of the Hatteras Sellers hereby irrevocably constitutes, designates (other than ECI) for purposes of this Agreement and appoints, authorizes the Escrow Agreement and empowers the Sellers’ Representative (as agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact of she Sellers with respect hereto and agent, with full power of substitution or resubstitution, thereto (the "Other Sellers' Representative") (Any reference in this Agreement to perform all such acts (or the "Sellers' Representative" shall be deemed to omit from taking any action), refer to both the ECI Sellers' Representative on behalf of each ECI, and the Other Sellers' Representative on behalf of the Sellers (other than ECI)). Each Sellers' Representative shall have the authority to take such Hatteras Seller, actions and exercise such discretion on behalf of its respective principals as are required, authorized or contemplated by required of the Sellers' Representative pursuant to the terms of this Agreement and the other Transaction Documents Escrow Agreement (and any such actions shall be binding on each of the transactions contemplated hereby and therebySellers represented by such Sellers' Representative), which includes including without limitation the power and authority tofollowing:
(i) execute to receive, hold and deliver all documents necessary or desirable to carry out Parent the intent of this Agreement share certificates representing the Shares, the certificates representing the Warrants, the certificates representing the Debentures, and any other Transaction Documentdocuments relating thereto;
(ii) determine whether to execute, acknowledge, deliver, record and file all ancillary agreements, waivers, consents, certificates and documents which the conditions to Closing Sellers' Representative deems necessary or appropriate in Article VII have been satisfiedconnection with the consummation of the transactions contemplated by the terms and provisions of this Agreement;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to receive and make any claim payments provided for indemnification by any Purchaser Indemnitee under this Agreement and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriateacknowledge receipt and payment thereof;
(iv) give and receive to waive any and all notices pursuant breach or default under the Agreement, or to this Agreement or waive any other Transaction Documentcondition precedent to the Closing under Section 7 hereof;
(v) grant any consent, approval to amend or waiver under terminate this Agreement or any other Transaction DocumentAgreement;
(vi) make all other elections or decisions contemplated by this Agreement or to receive service of process in connection with any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative claims under this Agreement or the Transaction DocumentsEscrow Agreement; and
(vii) to perform the obligations and exercise the rights under the Escrow Agreement, including the settlement of any claims and disputes with Parent arising thereunder; provided, however, that no such failure the Sellers' Representative shall not be authorized to act on take any actions that would (x) increase the part obligations or liabilities of any of the Sellers or (y) decrease the consideration to be received by any of the Sellers’ , other than in accordance with the assumptions set forth in Schedule A. The Sellers' Representative will at all times act in good faith toward the Sellers and will take no action which would disproportionately impact one Seller in relation to the other Sellers taken as a whole. The designation and appointment of the Sellers' Representative is irrevocable and shall not be affected by the subsequent death, incapacity, insolvency or dissolution of any Seller. Parent shall have the right to rely upon all actions taken or omitted by the Seller's Representative pursuant to this Agreement, all of which actions and omissions shall be binding on each of the Sellers represented by such Sellers' Representative. If the Other Sellers' Representative shall die, become disabled or otherwise be deemed unable to fulfill his responsibilities as agent of the Sellers (other than ECI), then the Sellers (other than ECI) holding a waiver majority in interest of the capital stock of the Company (assuming the exercise of all Warrants and the Conversion of all Debentures and not including any securities of the Company held by ECI) shall, within ten days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such right or interest of any Hatteras Seller or successor. Any such successor shall become the "Other Sellers’ Representative unless such waiver is in writing signed by the Sellers’ ' Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim " for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination purposes of this Agreement. The Sellers hereby authorize their respective Sellers’ ' Representative to pay all reasonable and documented legal fees and expenses incurred by the Company and the Sellers (as further described in Section 10.3 below) from the Purchase Consideration prior to the distribution of the Purchase Consideration to the Sellers, except for fees and expenses paid by the Company or included as a Current Liability in the calculation of Net Cash. The Sellers hereby agree to transfer to the Sellers' Representative such additional cash amounts as shall be determined by the only person authorized Sellers' Representative are necessary to take any action so requiredpay all legal fees and expenses incurred by the Company and the Sellers (as further described in Section 10.3 below), authorized except for fees and expenses paid by the Company or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative included as a Current Liability in the name calculation of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsNet Cash.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Share Purchase Agreement (Terayon Communication Systems)
Sellers’ Representative. (a) Each of the Hatteras The Sellers Representative is hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative appointed by each Member (and each successor appointed in accordance with Section 11.18(c)its successors and assigns) as its, his or her true agent and lawful attorney-in-fact and agent, with full power of substitution or resubstitutionfor such party, to perform all such acts (or to omit from taking any action), for and on behalf of each such Hatteras Sellerparty, as are requiredthe party authorized to: (i) negotiate, authorized defend, dispute, contest, assert, compromise and settle all post-Closing claims and matters arising under this Agreement, including any dispute or contemplated by final resolution of Final Closing Items under Section 2.4 and post-Closing claims and matters relating to any claim for indemnification under ARTICLE IX; provided, however, that with respect to any claim or demand for indemnification pursuant to ARTICLE IX for which FE-STACK may have liability (except with respect to any Seller Tax Contest) to a Buyer Indemnified Party, if such claim or demand relates to an indemnity obligation for which FE-STACK would be solely liable pursuant to Section 9.2, FE-STACK, not the Sellers Representative, shall have full authority to negotiate, defend, dispute, contest, assert, compromise and settle such claims and demands, (ii) agree to, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and matters, and to take all actions necessary or appropriate in the reasonable judgment of the Sellers Representative for the accomplishment of the foregoing, (iii) initiate or refrain from initiating or dispute or refrain from disputing any claim for indemnification or other claim under this Agreement, (iv) take any other action expressly delegated to the Sellers Representative under the other terms of this Agreement and (v) give and receive notices and communications to or from Seller relating to the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure in each case without having to act on seek or obtain the part consent of the Sellers’ Members. Sellers Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf keep each of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller Members reasonably informed in connection with any matter arising under action or decision delegated to Sellers Representative by this Agreement in accordance with Agreement, including this Section 11.18 10.13, and shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignspromptly provide each Member with all documentation or communication involved therewith.
(b) The grant Sellers Representative shall not be liable for any act done or omitted hereunder as the Sellers Representative while acting in good faith and in the exercise of authority provided for reasonable judgment. The Members shall indemnify the Sellers Representative and hold the Sellers Representative harmless against any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Sellers Representative and arising out of or in connection with the acceptance or administration of the Sellers Representative’s duties under this Section 11.18: (i) is coupled with an interest Agreement, including the reasonable fees and is being granted, in part, as an inducement to expenses of any legal counsel retained by the Parties to enter into this Agreement and will be irrevocable and Sellers Representative. This right of indemnification shall survive the deathtermination of this Agreement. Any Person, incompetencyincluding Buyer, bankruptcy or liquidation dealing with the Sellers Representative is entitled to rely on the actions taken by, and consents and approvals given by, the Sellers Representative as the actions of each Member without the need for further investigation. A Person, including Buyer, shall be entitled to rely on the Sellers Representative’s actions, consents and approvals notwithstanding any Hatteras Seller and will be binding knowledge of the relying Person. No Person shall have any liability for relying on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ the Sellers Representative acting by signing as Sellers’ Representative of any Hatteras Sellerin the foregoing manner.
(c) If Sellers’ the Sellers Representative becomes unable or its successors and permitted assignsunwilling to serve as an agent, such other Person or Persons as may be designated by the Members shall succeed such Person as the case may beSellers Representative. If the Sellers Representative should at any time become unwilling to serve as the Sellers Representative, advise the Hatteras Sellers that it is unavailable to perform it duties hereunderhe promptly shall so notify Seller in writing, within thirty (30) days and shall bear no liability of notice any kind or nature whatsoever as a consequence of such advicedetermination. In addition, an alternative Sellers’ Representative will be appointed by at any time as determined in the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative sole discretion of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Sellers Representative shall have no liability tomay decline to take any action, and shall not be liable for make any Losses ofdetermination, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect bear any expense without having first obtained the approval or consent of this Agreement Seller or the transactions contemplated herebyany Member.
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutesBy consenting to this Agreement, designates and or accepting any consideration as contemplated by Article 2, each Rolling Company Unitholder appoints, authorizes and empowers Lake Street to act as a representative for the Sellers’ Representative (benefit of the Rolling Company Unitholders, as the sole and each successor appointed in accordance with Section 11.18(c)) as its, his or her true exclusive agent and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act on behalf of each Rolling Company Unitholder for all purposes under this Agreement and the Ancillary Documents, and whether prior to or following the Closing. Without limiting the generality of the foregoing, the Sellers’ Representative shall have the full power and authority and shall be required to take any and all actions on behalf of the Rolling Company Unitholders that is necessary, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Sellers’ Representative under this Agreement and the Ancillary Documents, including the power and authority to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection therewith, including to execute and deliver any Ancillary Documents to which Sellers’ Representative is a party (with such Hatteras Sellermodifications or changes therein as to which the Sellers’ Representative, as are requiredin his sole and absolute, authorized discretion, shall have consented); (ii) execute and deliver, and receive deliveries of, all agreements, certificates, statements, notices, approvals, extension, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Ancillary Documents to which Sellers’ Representative is a party; (iii) execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and any Ancillary Documents to which Sellers’ Representative is a party and the consummation of the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
; (iv) give and receive service of process in connection with any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers claims under this Agreement and the Transaction Ancillary Documents to which Sellers’ Representative is party; (v) make any calculations and determinations and settle any matters on behalf of all Rolling Company Unitholders in connection with this Agreement (including the issuance of Earn Out Shares contemplated by Section 2.6), (vi) assert or pursue on behalf of the Rolling Company Unitholders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) investigate, defend, contest or litigate any Proceeding or investigation initiated by PTIC II or any other Person, or by any Governmental Entity against any Rolling Company Unitholders and receive process on behalf of any or all Rolling Company Unitholders in any such Proceeding or investigation and compromise or settle on such terms as the Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Sellers’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; (vii) to refrain from enforcing any right of the Hatteras Sellers any Rolling Company Unitholder arising out of or under or in any manner relating to this Agreement or any Ancillary Document to which the Sellers’ Representative under this Agreement is a party, including by providing waivers or the Transaction Documentsextensions of time to perform any covenant or obligation; provided, however, that no such failure to act on the part of the Sellers’ Representative, except as otherwise provided in this Agreement or in any Ancillary Document to which Sellers’ Representative is a party, shall be deemed a waiver of any such right or interest of by any Hatteras Seller or the Sellers’ Representative such Rolling Company Unitholder unless such waiver is in writing signed by the waiving party or by the Sellers’ Representative;, as applicable and (viii) to make, execute, acknowledge and deliver all such other statements, 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 Sellers’ Representative, in his sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all Ancillary Documents to which Sellers’ Representative is party (including, for the avoidance of doubt, in connection with Article 2).
(xb) review the Preliminary Statement and provide notice By consenting to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereofthis Agreement, or if Purchaser does not deliver accepting any consideration as contemplated by Article 2, each Rolling Company Unitholder agrees and acknowledges that other than the Preliminary Statement within ninety Sellers’ Representative, no other Person has any agreement or option, or any right or privilege (90whether by law, pre-emptive or contractual) days after capable of becoming an agreement or option, for the Closing Date, either prepare right and deliver the Preliminary Statement power to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute act with respect to any matter the matters covered by Rolling Company Unitholder is authorized to act as contemplated in this Section 3.6 hereof, including, where appropriate, engaging 9.18. Lake Street hereby (i) accepts its appointment as the Neutral Auditors;Sellers’ Representative and authorization to act as attorney-in-fact and agent on behalf of each Rolling Company Unitholder in accordance with the terms of this Agreement and any Ancillary Document to which Sellers’ Representative is a party and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Agreement and any Ancillary Document to which Sellers’ Representative is party.
(xic) review the Certificate of 2013 Adjusted PTNI PTIC II, Sponsor and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereofother Person may conclusively and absolutely rely, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Datewithout inquiry, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution action or decision of any dispute with respect the Sellers’ Representative in all matters referred to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs herein. PTIC II and expenses incurred in respect of, or charged by, parties unaffiliated Sponsor are entitled to deal exclusively with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve on all matters arising under or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers connection with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required any Ancillary Document to do, or which Sellers’ Representative in its sole discretion determines is desirable a party. Any action taken or not taken or decisions, communications or writings made, given or executed by the Sellers’ Representative with respect to doall such matters, pursuant to for or to carry out the intent on behalf of this Agreement and any other Transaction DocumentRolling Company Unitholder, and to amend shall be deemed an action taken or supplement any of the foregoingnot taken or decisions, communications or writings made, given or executed by such Company Unitholder. All of the indemnities, immunities and powers granted Any notice or communication delivered to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be deemed to have been delivered to all the only person authorized Rolling Company Unitholders. PTIC II and Sponsor shall be entitled to take disregard any action so requireddecisions, authorized communications or contemplated by this Agreement writings made, given or executed by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller Company Unitholder in connection with any matter arising under or in connection with this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirsor any Ancillary Document to which the Sellers’ Representative is a party, representativesunless the same is made, successors and permitted assignsgiven or executed by the Sellers’ Representative.
(bd) The appointment of the Sellers’ Representative as each Rolling Company Unitholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Rolling Company Unitholder with regard to this Agreement and the Ancillary Documents to which Sellers’ Representative is a party. The grant of authority provided for in this Section 11.18: herein (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; Rolling Company Unitholder and (ii) subject to shall survive the consummation of transactions contemplated by this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as Agreement. Notwithstanding the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representativeforegoing, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of may resign as the Sellers’ Representative under at any time by providing written notice to PTIC II (prior to the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of a successor Sellers’ Representative (who is reasonably acceptable to PTIC II (prior to the Closing) or the Sponsor (after the Closing)) by the Rolling Company Unitholders constituting a majority of the Company Units immediately prior to the Effective Time. All power, authority, rights, privileges and obligations conferred in this Agreement to the Sellers’ Representative shall apply to any such successor Sellers’ Representative.
(e) Sellers’ Representative hereby represents and warrants on behalf of itself to PTIC II as of the date hereof and as of the Closing Date, as follows:
(i) Sellers’ Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery of this Agreement, the Ancillary Documents to which Sellers’ Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of Sellers’ Representative. This Agreement and each Ancillary Document to which Sellers’ Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by Sellers’ Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(iii) Sellers’ Representative has the sole power, authority and control of the Rolling Company Unitholders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 9.18(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or otherwise any Ancillary Document, in respect each case on behalf of this Agreement or the transactions contemplated herebya Rolling Company Unitholder.
Appears in 1 contract
Sources: Business Combination Agreement (Proptech Investment Corp. Ii)
Sellers’ Representative. (a) Each By their execution of this Agreement, the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoint the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsthe representative, his or her true and lawful attorney-in-fact and agent, agent of Sellers in connection with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby by the Transaction Agreements and therebyin any Action involving the Transaction Agreements. In connection therewith, which includes the Sellers’ Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate, and shall have the power and authority to:
, in each case, in the name and on behalf of Sellers: (i) act for Sellers with regard to all matters pertaining to the Transaction Agreements; (ii) act for Sellers in any Action with regard to all matters pertaining to the Transaction Agreements; (iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents necessary or desirable to carry out that the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative deems necessary or appropriate in its sole discretion deems appropriate;
connection with the consummation of the transactions contemplated by the 12 Transaction Agreements (including waiving any closing conditions on behalf of Sellers or deeming any closing condition satisfied); (iv) receive funds, make payments of funds, and give receipts for funds; (v) do or refrain from doing, on behalf of Sellers, any further act or deed that the Sellers’ Representative deems necessary or appropriate in the Sellers’ Representative’s discretion relating to the subject matter of the Transaction Agreements, in each case as fully and completely as Sellers could do if personally present; (vi) give and receive any and all notices pursuant required to this Agreement be given or any other received by Sellers under the Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
Agreements; (vii) approve waiversagree to, clarifications or post-negotiate and/or comply with the determination of the Closing modifications Date Statement and the Adjustment Amount pursuant to this Agreement or any other Transaction Document;
Section 2.6; (viii) receiveagree to, negotiate, enter into settlements and enforce compromises and/or comply with arbitration awards and court orders with respect to claims made by the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
Acquiror under Article VII; and (ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for receive service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising Actions under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsthe Transaction Agreements.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as shall act for the Sellers on all of the matters set forth in the Transaction Agreements in the manner the Sellers’ Representative believes to be in the best interest of any Hatteras Seller.
(c) If the Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor . The Sellers’ Representative is a Principal, authorized to act on behalf of the appointment of such successor Sellers notwithstanding any dispute or disagreement among the Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include In taking any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative action as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Sellers’ Representative reasonably believes to be authorized thereunto.
(c) For all purposes of this Agreement: (i) the Acquiror shall be entitled to rely conclusively, without any further inquiry or investigation, on the instructions and decisions of the Sellers’ Representative as to the settlement of any disputes or claims under the Transaction Agreements, or any other actions required or permitted to be taken by the Sellers’ Representative hereunder, and no party shall have no liability toany cause of action against the Acquiror for any action taken by the Acquiror in reliance upon the instructions or decisions of the Sellers’ Representative; (ii) the provisions of this Section 2.7(c)(ii) are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; and 13 (iii) this Section 2.7(c)(iii) shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, assignees and successors of each Seller, and any references in this Agreement to a Seller shall mean and include the successors to the rights of each applicable Seller hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(d) Each of the Sellers agrees that the Sellers’ Representative shall not be liable for any Losses of, any third Person, any Party damages while acting in good faith and in the exercise of its reasonable judgment and arising out of or to any Indemnified Party in connection with any obligations, actions the acceptance or failure to act administration of the Sellers’ Representative its duties under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.Agreement. Article III
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller by executing this Agreement hereby irrevocably constitutesconstitutes and appoints ▇▇▇ ▇. ▇▇▇▇▇▇ as Sellers’ Representative, designates with full power and appointsauthority to act in the name of and for and on behalf of such Seller with respect to all matters arising in connection with, authorizes or related to, this Agreement and empowers the Contemplated Transactions. Each Seller hereby appoints Sellers’ Representative (a) the agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentof such Seller, with full power of substitution or resubstitutionsubstitution, and with full capacity and authority in its sole discretion, to perform all such acts (or to omit from taking any action), act in the name of and for and on behalf of each such Hatteras Seller in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement, and (b) the agent for service of process for such Seller, as are required, authorized or contemplated by this Agreement and such Seller hereby irrevocably consents to the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent service of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or process in any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf proceeding arising out of the Hatteras Sellers with respect to any claims against Purchaser or relating to this Agreement or by the Transaction Documents; and
(xv) perform each delivery of such act and thing whatsoever that process to Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingRepresentative. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The power of Sellers’ Representative shall be each Hatteras Seller’s agent for service of process include the power to represent such Seller with respect to any disputes regarding or arising out all aspects of this Agreement, which power shall include the power to (i) receive any payment or transfer of funds to be made pursuant this Agreement on behalf of such Seller, (ii) waive any and all conditions of this Agreement, (iii) amend, modify or supplement this Agreement in any respect, (iv) defend, negotiate or settle any claims or actions for indemnity pursuant to Article 8, (v) retain legal counsel or accountants and be reimbursed by the transactions contemplated herebySellers for all fees, expenses and other charges of such legal counsel or accountants, (vi) receive notices or other communications, (vii) deliver any notices, certificates or other documents required hereunder, (viii) take all such other action and to do all such other things as Sellers’ Representative deems necessary, appropriate, desirable or advisable with respect to this Agreement and (ix) perform its obligations as set forth in, and in accordance with, this Agreement. Any action Each Seller agrees that Buyer and its Affiliates shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by Sellers’ Representative in the name of or on behalf of the Sellers and shall have no Liability with respect thereto, and none of Buyer or any Hatteras Seller in connection with of its Affiliates shall have any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, duty to inquire as an inducement to the Parties to enter into this Agreement acts and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation omissions of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting Representative. Each Seller agrees that all deliveries by signing as Sellers’ Representative Buyer, including any payment of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assignsfunds under Article 2, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed deliveries to include the Sellers; Buyer shall not have any duly appointed successor Liability with respect to any aspect of the distribution or communication of such deliveries between Sellers’ Representative and any Seller; and any disclosure made to Sellers’ Representative by or on behalf of Buyer shall be deemed to be a disclosure made to each Seller. Each Seller that makes a claim against Buyer alleging the lack of authority of Sellers’ Representative shall indemnify Buyer and its Affiliates for any damages suffered, including reasonable attorneys’ fees and other costs, as a result of Buyer’s good faith reliance on the acts or omissions of Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt Each Seller agrees that any payment made by or on behalf of written notice of a change of Buyer to Sellers’ Representative under Section 11.18(c)on a Seller’s behalf shall be deemed a direct payment to a Seller, continue and no Seller shall have any recourse against Buyer or any of its Affiliates in the event that such payment is not delivered to rely, without inquiry, upon the actions of such Seller by Sellers’ Representative for any reason. In the event the Seller Representative refuses to, or is no longer capable of, serving as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordinglyhereunder, the Parties acknowledge and agree that, in its capacity as Sellers shall promptly appoint a successor Sellers’ RepresentativeRepresentative who shall thereafter be a successor Sellers’ Representative hereunder, the and Sellers’ Representative shall have no liability toserve until such successor is duly appointed and qualified to act hereunder. Sellers’ Representative shall promptly forward to each Seller all notices he receives regarding or arising under this Agreement and shall keep each Seller fully informed on all matters relating to the defense, negotiating, and shall settlement of any claim or action for indemnity pursuant to this Section 9.18, including but not be liable for any Losses of, any third Person, any Party limited to the selection and retention of legal counsel or to any Indemnified Party accountants in connection with any obligations, actions such claim or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyaction.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby consents to (i) the appointment of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Sellers’ Representative (hereunder and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful the attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated and (ii) the taking by this Agreement Sellers’ Representative of any and all actions and the other Transaction Documents making of any decisions required or permitted by, or with respect to, this Agreement, the Related Agreements and the transactions contemplated hereby and thereby, which includes including, without limitation, the exercise of the power and authority to:
to (iA) agree to execute and deliver all documents necessary any amendments to or desirable to carry out the intent terminations of this Agreement, the Related Agreements and all other documents contemplated hereby and thereby, (B) authorize delivery to Buyer in accordance with the Escrow Agreement from the Price Adjustment Escrow Account an amount equal to the Post-Closing Reduction, if any Post-Closing Reduction is required under Section 1.05, (C) agree to, negotiate, enter into settlements and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) compromises of and comply with orders of courts and awards of arbitrators with respect to any claim for indemnification by claims under Article X, (D) resolve any Purchaser Indemnitee such indemnification claims and authorize delivery to any Buyer Indemnified Party in accordance with the Escrow Agreement from the Indemnity Escrow Account an amount equal to any disbursements to resolve any such claims as indemnification claim, (E) make any representations, warranties or certifications pursuant to this Agreement on behalf of such Seller, (F) accept receipt of such Seller’s Pro Rata Portion of the Initial Sellers Payment on behalf of such Seller in full satisfaction of Buyer’s obligation to make such payment hereunder and (G) take all actions necessary in the judgment of Sellers’ Representative incidental to or for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Related Agreements and the transactions contemplated hereby and thereby.
(b) Each Seller shall be bound by the actions taken by Sellers’ Representative exercising the rights granted to him by this Agreement, the Related Agreements or the other documents contemplated by this Agreement, and Parent and Buyer shall be entitled to rely on any such action or decision of Sellers’ Representative. Sellers’ Representative shall not be entitled to any fee, commission, compensation or reimbursement for the performance of his services hereunder or under the Related Agreements from Parent, Buyer or Sellers or from the cash constituting the Initial Sellers Payment.
(c) Sellers’ Representative shall have the sole discretion to use the Expense Funds to pay any expenses incurred by Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consenthis capacity as Sellers’ Representative, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waiversincluding, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receivewithout limitation, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce attorneys’, accountants’ and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the other experts’ fees. Once Sellers’ Representative under this Agreement or determines, in his sole discretion, that Sellers’ Representative will not incur any additional expenses in his capacity as Sellers’ Representative, Sellers’ Representative will distribute, at the Transaction Documentssole expense of Sellers’ Representative, to Sellers, in accordance with their respective Pro Rata Portions, the remaining unused Expense Funds, if any, without interest; provided, however, that no such failure to act on the part of the Sellers’ Representative shall not be deemed a waiver of required to return any amount to any Seller if the amount such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the would otherwise receive would be less than Fifty Dollars ($50).
(d) Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faithsuch capacity, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise shall have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect no obligations to any claims against Purchaser relating other party to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative other than as expressly set forth in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement, including as agent, fiduciary or trustee of or for any Seller. The Sellers’ Representative shall not be the only person authorized liable to take any Seller for any action so requiredtaken or omitted to be taken under or in connection with this Agreement, authorized the Related Agreements or the other documents contemplated by this Agreement by Agreement, and each Seller hereby waives and shall not assert any Hatteras Seller andright, without limiting the generality claim or cause of the foregoingaction based thereon, Purchaser shall be required to provide notices except to the Hatteras Sellers pursuant to this Agreement solely to extent of liabilities resulting primarily from Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service gross negligence or willful misconduct (as determined in a final non-appealable judgment by a court of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller competent jurisdiction) in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignshis duties expressly set forth herein.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(ce) If Sellers’ Representative shall die, become disabled, resign or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable otherwise be unable to perform it duties fulfill his responsibilities hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is Sellers shall appoint a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of new Sellers’ Representative as soon as reasonably practicable by written consent by sending notice and a copy of the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the duly executed written consent appointing such new Sellers’ Representative is a party to this Agreement solely in its role of representative Buyer. Such appointment will be effective upon the later of the Hatteras Sellers according to date indicated in the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement consent or the transactions contemplated hereby.date such consent is received by Buyer. [Signatures appear on the following page]
Appears in 1 contract
Sources: Stock Purchase Agreement
Sellers’ Representative. (a) Each of the Hatteras The Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoint ▇▇▇▇▇ ▇▇▇▇▇ as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsauthorize the Sellers’ Representative to take, his or her true and lawful attorney-in-fact consent to the Sellers’ Representative taking, the following actions for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each of them following Closing: (i) to give and receive notices and communications; (ii) to take any and all actions relating to claims to hold harmless, indemnify, compensate, reimburse or pay any Purchaser Indemnitee hereunder; (iii) to authorize delivery to Purchaser of a portion of the Escrow Fund in satisfaction of claims by the Purchaser Indemnitees; (iv) to object to such Hatteras Sellerdeliveries; (v) to agree to, as are requirednegotiate, authorized or enter into settlements and compromises of, and comply with orders of courts with respect to, such claims; (vi) to take all other actions contemplated by for the Sellers’ Representative in this Agreement and the other Transaction Documents Tax Covenant and in the transactions contemplated hereby and thereby, which includes the power and authority to:
Escrow Agreement; (ivii) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification documents and agreements contemplated by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
and the Tax Covenant (vincluding the Escrow Agreement); (viii) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) to make all other elections or decisions contemplated by this Agreement or and any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to documents and agreements contemplated by this Agreement or any other Transaction Document;
and the Tax Covenant (viii) receive, and enforce including the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
Escrow Agreement); (ix) to enforce amend, modify or waive provisions of this Agreement and protect the rights Tax Covenant (subject to Section 9.2 and Section 9.3) or any of the Hatteras other related agreements to which the Sellers’ Representative is a party; (x) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Sellers’ Representative in complying with the Sellers’ Representative’s duties and obligations; and (xi) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Purchaser shall be entitled to deal exclusively with the Sellers’ Representative on all such matters relating to this Agreement and the Tax Covenant (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by the Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as being fully binding upon such holder. Each Seller hereby undertakes to Purchaser that the Sellers’ Representative are irrevocably authorized by the Sellers to receive payment on the Sellers’ behalf of all payments to be made by Purchaser to the Sellers under this Agreement and the Transaction Documents Tax Covenant and to refrain from enforcing any right of each Seller further acknowledges and agrees that the Hatteras Sellers or receipt by the Sellers’ Representative under this Agreement will be deemed good and sufficient discharge for Purchaser in respect of its obligations to pay any such amounts such that Purchaser shall not be concerned to see application thereof. Notices or communications to or from the Transaction Documents; providedSellers’ Representative shall constitute notice to or from each of the Sellers. Any decision or action by the Sellers’ Representative hereunder, howeverincluding any agreement between the Sellers’ Representative and Purchaser relating to the defense, that payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such Seller. No Seller shall have the right to object to, dissent from, protest or otherwise contest the same.
(b) If the Sellers’ Representative shall for any reason become unable to fulfill his responsibilities as the agent of the Sellers, then ▇▇▇▇▇ ▇’▇▇▇▇▇ shall, within ten (10) days after the date upon which the Sellers’ Representative becomes unable to fulfill his responsibilities, appoint a successor representative reasonably satisfactory to Purchaser. Any such successor shall become the “Sellers’ Representative” for all purposes hereunder. If for any reason there is no such failure Sellers’ Representative at any time, all references herein to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement refer to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns▇▇▇▇▇ ▇’▇▇▇▇▇.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each 8.1.1 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the Hatteras Sellers will be taken by the Sellers’ Representative on behalf thereof. The Sellers’ Representative may resign upon 20 days’ written notice. Upon its resignation, the holders of a majority of the voting power of the Company Securities at any time prior to the Closing or, if after Closing, persons who held a majority of the voting power of the Company Securities at Closing, may designate a successor Sellers’ Representative, subject to the approval of the selection of the successor Sellers’ Representative by Purchaser, such approval not to be unreasonably withheld.
8.1.2 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the Sellers will be taken by the Sellers’ Representative on behalf of the Sellers. By voting in favor of the adoption of this Agreement and the consummation of the transactions contemplated by the Agreement, or by participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each of the Sellers hereby irrevocably constitutesappoints (except if, designates and appointsonly if, authorizes and empowers a successor Sellers’ Representative is appointed pursuant to Section 8.1.1 by the requisite vote of the relevant holders of Company Securities) the Sellers’ Representative (and each any successor appointed in accordance with chosen as Sellers’ Representative pursuant to Section 11.18(c)8.1.1) as itsthe representative, his or her true agent and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each of the Sellers for the purposes of acting in the name and stead of such Hatteras SellerSeller and for all purposes in connection with this Agreement and the agreements ancillary hereto, as are required, authorized including: (a) giving and receiving all notices permitted or contemplated required by this Agreement and acting on the Sellers’ behalf hereunder for all purposes in connection with this Agreement and the agreements ancillary hereto; (b) employing legal counsel on behalf of the Sellers; (c) paying any legal, accounting, investment banking, or any other Transaction Documents fees and expenses incurred by the Sellers’ Representative on the Sellers’ behalf in consummating the transactions contemplated hereby by this Agreement; (d) prosecuting, defending or settling claims arising under this Agreement; and thereby(e) making, executing, acknowledging, and delivering all such Contracts, Orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give discretion, may consider necessary or proper in the best interests of the Sellers in connection with or to carry out the terms of this Agreement, as fully as if such Sellers were personally present and receive any acting. This power of attorney and all notices authority conferred hereby is granted and conferred in consideration of those interests and for the purpose of completing the transactions contemplated hereby, and this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by the Sellers or by operation of Law, whether by the termination of the Sellers’ Representative or by the occurrence of any other event. If any Seller who is an individual should die or become incompetent or incapacitated, any Seller that is a legal entity should be dissolved, liquidated, or wound up, or any other similar event should occur before the delivery of certificates or other instruments of transfer representing shares of Capital Stock pursuant to this Agreement, such certificates and instruments shall nevertheless be delivered by or on behalf of such Seller in accordance with the terms and conditions of this Agreement, and all actions taken by the Sellers’ Representative pursuant to this Agreement shall be as valid as if such death, incompetence, incapacity, dissolution, termination, winding up, or any other Transaction Document;
(v) grant any consentsimilar event had not occurred, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce regardless of whether the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers Purchaser or the Sellers’ Representative under this Agreement has received notice of such death, incompetence, incapacity, dissolution, termination, winding up, or the Transaction Documents; provided, however, that no such failure to act on the part of the other similar event.
8.1.3 The Sellers’ Representative shall be deemed a waiver of such right or interest will incur no liability of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect kind to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement action or omission by the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, connection with the Sellers’ Representative’s services pursuant to or to carry out the intent of this Agreement and any other Transaction Documentagreements ancillary hereto, and to amend or supplement any except in the event of the foregoing. All of the indemnities, immunities and powers granted to liability directly resulting from the Sellers’ Representative under this Agreement shall survive the Closing Date Representative’s gross negligence or termination of this Agreementwillful misconduct. The Sellers’ Representative shall not be liable to the only person authorized to take Sellers for any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices omission pursuant to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representativeadvice of counsel. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller Sellers will indemnify, defend and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that hold harmless the Sellers’ Representative is a party to from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Sellers’ Representative’s execution and performance of this Agreement solely and any agreements ancillary hereto, in its role of representative each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Sellers’ Representative by the Sellers, any such Representative Losses may be recovered by the Sellers’ Representative from the Escrow Fund at such time as remaining amounts are distributed to the Sellers; provided, that while this section allows the Sellers’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, and shall the Sellers set forth elsewhere in this Agreement are not intended to be liable for any Losses of, any third Person, any Party or applicable to any Indemnified Party in connection with any obligations, actions or failure the indemnities provided to act of the Sellers’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers’ Representative or the termination of this Agreement.
8.1.4 [Reserved]
8.1.5 Upon the Closing, the Purchaser shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by Sellers’ Representative, as being fully binding upon such Person. Notices or communications to or from Sellers’ Representative after Closing shall constitute notice to or from each of the Sellers. After Closing, any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Purchaser relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such Person. No Seller shall have the right to object to, dissent from, protest or otherwise in respect contest the same.
8.1.6 The provisions of this Section 8.1 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Seller, and any references in this Agreement to a Seller shall mean and include the successors to such Seller’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or the transactions contemplated herebyotherwise.
Appears in 1 contract
Sources: Merger Agreement (MTBC, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c11.8(c)) ), as its, his or her sole, exclusive, true and lawful representative, agent and attorney-in-fact and agentof such Seller, with full power of substitution or resubstitution, but without the right to assign its rights or delegate its duties without the prior written consent of Sellers, and subject to Section 11.8(b), to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and therebyhereby, which includes including the power and authority to:
: (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
Agreement; (ii) determine whether the conditions to Closing in Article VII Section 7 have been satisfied;
; (iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee Buyer Indemnified Party and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
; (iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
Agreement; (v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
Agreement; (vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
Agreement; (viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(xvii) review the Preliminary Statement and provide notice to Purchaser Buyer under Section 3.6 2.3(b)(iv) of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety and agree upon any resolution of any dispute with respect thereto; (90viii) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary review each EBITDA Statement and the Final Closing Working Capital Statementprovide notice to Buyer under Section 2.4(a) of any items of disagreement related thereto or approval thereof, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
thereto; (xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiiiix) resolve or otherwise defend any Purchaser Indemnitee Buyer Indemnified Party as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article XSection 9, and (B) to defend any such Buyer Indemnified Party from any Loss under Article XSection 9, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
; and (xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xvx) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction DocumentAgreement, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.1811.8: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties Buyer to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor successor, permitted assign, heir and representative thereto; and (ii) subject to this Section 11.1711.8, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerSellers.
(c) If Sellers’ Representative or his her or its heirs, representatives, successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days three Business Days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser .
(d) Buyer may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), 11.8(c) may continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.1811.8. Each Hatteras Seller hereby authorizes the other Parties hereto Buyer to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative.
(e) The Seller’s Representative will not be liable to any Seller for any action taken by it in good faith pursuant to this Agreement, and Sellers will jointly and severally indemnify the Sellers’ Representative from any Losses arising out of its serving as the Sellers’ Representative hereunder. The Parties acknowledge Sellers’ Representative is serving in that capacity solely for purposes of administrative convenience, and agree is not personally liable in such capacity for any of the obligations of Sellers hereunder, and Buyer agrees that it will not look at the personal assets of the Sellers’ Representative, acting in such capacity, for the satisfaction of any obligations to be performed by Sellers hereunder; provided, however, that the Sellers’ Representative is shall indemnify and hold Buyer harmless for any and all Losses related to a party to this Agreement solely in its role of representative of claim initiated by a Seller against Buyer for actions taken by the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RCS Capital Corp)
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, each of the Hatteras Sellers hereby irrevocably constitutesconstitutes and appoints ▇▇▇▇▇, designates and appoints, authorizes and empowers as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-agent and attorney in fact and agent(in such capacity, the “Sellers’ Representative”) of the Sellers with full power of substitution or resubstitutionto act in the name, place and stead of the Sellers with respect to perform all such acts (or this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby as the Sellers’ Representative may deem appropriate, and to omit from taking any action), act on behalf of each the Sellers in any litigation or arbitration involving this Agreement or the Escrow Agreement, do or refrain from doing all such Hatteras Sellerfurther acts and things, and execute all such documents as are required, authorized the Sellers’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the other Transaction Documents and Escrow Agreement, including the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute to act for the Sellers with regard to matters pertaining to the determination of the Purchase Price, the adjustment to the Purchase Price and deliver all documents necessary or desirable pertaining to carry out the intent indemnification referred to in this Agreement, including the power to settle any indemnity claim on behalf of this Agreement the Sellers and any other Transaction Documentto transact matters of litigation;
(ii) determine whether to execute and deliver all ancillary agreements, certificates and documents that the conditions to Closing Sellers’ Representative deems necessary or appropriate in Article VII have been satisfiedconnection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;
(iii) serve as to receive funds and give receipts for funds, including in respect of any adjustments to the named party (not in his individual, but solely in his representative capacity) with respect to Purchase Price or any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriateamounts distributed under the Escrow Agreement;
(iv) give and receive to do or refrain from doing any and all notices pursuant further act or deed on behalf of the Sellers that the Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or any other Transaction Documentthe Escrow Agreement as fully and completely as the Sellers could do if personally present;
(v) grant to receive service of process in connection with any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative claims under this Agreement or the Transaction DocumentsEscrow Agreement; providedand
(vi) to accept notices in accordance with Section 9.02.
(b) ▇▇▇▇▇ hereby agrees and consents to his appointment as the Sellers’ Representative pursuant to this Section 7.08, however, that no such failure to act on effective as of the part date of this Agreement. The appointment of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to irrevocable, and the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include and any duly appointed successor Sellers’ Representative. Purchaser other Person may conclusively and absolutely rely, without inquiry, and until upon any action or decision of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18herein. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for All actions and decisions of Sellers’ RepresentativeRepresentative shall be binding and conclusive on each Seller. All notices required to be made or delivered by the Purchaser to the Sellers and shall be made to the Sellers’ Representative for the benefit of the Sellers and shall discharge in full all notice requirements of the Purchaser to the Sellers with respect thereto. The Parties acknowledge and agree Sellers hereby confirm all that the Sellers’ Representative is a party shall do or cause to be done by virtue of its appointment as the Sellers’ Representative of the Sellers. The Sellers’ Representative shall act for the Sellers on all of the matters set forth in this Agreement solely and the Escrow Agreement in its role of representative the manner the Sellers’ Representative believes to be in the best interest of the Hatteras Sellers according to and consistent with the terms of obligations under this Section 11.18. AccordinglyAgreement and the Escrow Agreement, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, but the Sellers’ Representative shall have no liability to, and shall not be liable responsible to the Sellers for any Losses of, any third Person, any Party loss or to any Indemnified Party in connection with any obligations, actions or failure to act of damages the Sellers may suffer by the performance by the Sellers’ Representative of its duties under this Agreement or otherwise in respect the Escrow Agreement, other than loss or damage arising from intentional violation of the law by the Sellers’ Representative of his duties under this Agreement or the transactions contemplated herebyEscrow Agreement.
(c) If any individual Seller should die or become incapacitated, if any trust or estate should terminate or if any other similar event should occur, any action taken by the Sellers’ Representative pursuant to this Section 7.08 shall be valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Sellers’ Representative or the Purchaser shall have received notice of such death, incapacity, termination or similar event. The Person appointed as Sellers’ Representative may resign as such at any time on not less than five Business Days’ notice to the Sellers and the Parent. A vacancy in the position of Sellers’ Representative shall be filled by a Person determined by the holders of a majority in interest of the amount then held in the Escrow Account.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lincoln Educational Services Corp)
Sellers’ Representative. (a) Each of Foreign Sub Seller is hereby constituted to act as the Hatteras Sellers hereby irrevocably constitutesagent, designates and appointsproxy, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentrepresentative for each of the Sellers and their successors and assigns for all purposes under this Agreement, with full power of substitution or resubstitution, to perform all such acts the Seller Parent Guaranty and the Ancillary Agreements (or to omit from taking any actionthe “Sellers’ Representative”), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice , by its signature below, agrees to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred serve in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignscapacity.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement Effective immediately prior to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree thatClosing, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability tothe power and authority to take such actions on behalf of each of the Sellers as the Sellers’ Representative, in its sole judgment, may deem to be in the best interests of such Persons or otherwise appropriate on all matters related to or arising from this Agreement, the Seller Parent Guaranty and the Ancillary Agreements. Such powers shall not include:
(i) executing and delivering any and all supplements, amendments, waivers or modifications to this Agreement and all certificates, consents and other documents contemplated by this Agreement, the Seller Parent Guaranty and the Ancillary Agreements as may be liable for necessary or appropriate to effect the Sale and the other transactions contemplated hereby and thereby;
(ii) giving and receiving notices and other communications relating to this Agreement, the Seller Parent Guaranty and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(iii) taking or refraining from taking any Losses ofactions (whether by negotiation, any third Personsettlement, any Party litigation or otherwise) to any Indemnified Party in connection with any resolve or settle all matters and disputes arising out of or related to this Agreement, the Seller Parent Guaranty and the Ancillary Agreements and the performance or enforcement of the obligations, actions duties and rights pursuant to this Agreement, the Seller Parent Guaranty and the Ancillary Agreements;
(iv) engaging attorneys, accountants, financial and other advisors, paying agents and other persons necessary or failure to act appropriate, in the sole discretion of the Sellers’ Representative in the performance of its duties under this Agreement Agreement, the Seller Parent Guaranty and the Ancillary Agreements; and
(v) taking all actions necessary or otherwise appropriate in respect the judgment of this Agreement or the transactions contemplated herebySellers’ Representative for the accomplishment of the foregoing.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the designate Sellers’ Representative (to execute any and each successor appointed in accordance with Section 11.18(c)) as its, his all instruments or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), other documents on behalf of each such Hatteras SellerSellers and to do any and all other acts or things on behalf of Sellers which Sellers’ Representative deems necessary or advisable, as are required, authorized or contemplated by which may be required pursuant to this Agreement and or otherwise, in connection with the other Transaction Documents and consummation {P02534_X101.HTM;8} of the transactions contemplated hereby and therebythe performance of all obligations hereunder before, which includes at or following the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingClosing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser Sellers’ Representative shall be have the full and exclusive authority to: (a) calculate each Seller’s Percentage Interest hereunder; (b) agree with Buyer with respect to any matter or thing required to provide notices to or deemed necessary by Sellers’ Representative in connection with the Hatteras Sellers pursuant to provisions of this Agreement solely calling for the agreement of Sellers; (c) give and receive notices on behalf of all Sellers; (d) act on behalf of Sellers in connection with any matter as to which Sellers are or may be obligated under this Agreement or the Escrow Agreement, all in the absolute discretion of Sellers’ Representative; (e) 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 Sellers’ Representative to be necessary or advisable in connection with, this Agreement; and (f) take all actions necessary or desirable in connection with the defense or settlement of any indemnification claims pursuant to Article 9 and performance of obligations under Article 2, including to withhold funds for satisfaction of expenses or other liabilities or obligations or to withhold funds for potential indemnification claims made hereunder or to agree to settlement of the Final Post Closing Adjustment. The Sellers shall cooperate with Sellers’ Representative and any accountants, attorneys or other agents whom it may retain to assist in carrying out its duties hereunder. All decisions by Sellers’ Representative shall be each Hatteras Seller’s agent for service binding upon all Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Sellers’ Representative may communicate with any Seller or any other Person concerning his responsibilities hereunder, but it is not required to do so. Sellers’ Representative has a duty to serve in good faith the interests of process with respect Sellers and to perform its designated role under this Agreement, but Sellers’ Representative shall have no financial liability whatsoever to any disputes regarding Person relating to its service hereunder (including any action taken or omitted to be taken), except that it shall be liable for harm which it directly causes by an act of willful misconduct. Sellers shall indemnify and hold harmless Sellers’ Representative against any loss, expense (including reasonable attorney’s fees) or other liability arising out of its service as Sellers’ Representative under this Agreement or Agreement, other than for harm directly caused by an act of willful misconduct. Sellers’ Representative may resign at any time by notifying Buyer and Sellers in writing. Each Seller agrees that Buyer and the transactions contemplated hereby. Any Acquired Companies shall be entitled to rely conclusively and absolutely, without further inquiry, on any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 Sellers, and that each such action shall be binding upon on each Seller as fully as if such Hatteras Seller and its heirs, representatives, successors and permitted assignshad taken such action.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Securities Purchase Agreement (Patrick Industries Inc)
Sellers’ Representative. (a) Each The Sellers’ Representative is hereby approved to serve as the representative of the Hatteras Sellers with respect to the matters expressly set forth in this Agreement to be performed by the Sellers’ Representative. Each Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints the Sellers’ Representative (as the agent, proxy and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for such Seller for all purposes of this Agreement and agentthe other Transaction Documents, with including full power and authority on such Seller’s behalf (a) to consummate the Transactions, (b) to pay expenses or direct any payments (whether incurred on or after the date of substitution or resubstitutionthis Agreement) incurred in connection with the negotiation and performance of this Agreement and the other Transaction Documents, (c) to perform all disburse any funds received hereunder to such acts Seller and each other Seller, (or d) to omit from taking execute and deliver any action)certificates representing the Interests and execution of such further instruments as the Buyer may reasonably request in accordance with this Agreement and the other Transaction Documents, (e) to execute, deliver and receive on behalf of such Seller any documents or any amendment or waiver hereto and thereto, (f) to take all other actions to be taken by or on behalf of such Seller in connection herewith and therewith, (g) to do each and every act and exercise any and all rights which such Hatteras SellerSeller is, or Sellers collectively are, permitted or required to do or exercise under this Agreement and the other Transaction Documents, (h) to administer this Agreement and the other Transaction Documents, including the resolution of any disputes or claims; (i) to make determinations to settle any dispute as are required, authorized to the calculation of the Closing Consideration or contemplated by Funded Closing Consideration; (j) to agree to waivers of conditions and obligations under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant amendments to this Agreement or any other Transaction Document;Documents, except that any amendment to this Agreement or any other Transaction Document that adversely affects the Rollover Sellers disproportionally to the other Sellers shall require the consent of a majority-in-interest of the Rollover Sellers; (k) to receive service of process in connection with any claims under this Agreement; and (l) it being agreed that in the event of post-Closing Proceeding, the Buyer is entitled to discovery of documents from the Sellers relevant to the litigation as if such Sellers were parties to the litigation, notwithstanding the appointment of the Sellers’ Representative as the sole intermediary for other purposes. For purposes of this Section 7.10(a), the term “Transaction Documents” does not include the Rollover Term Sheet, DB Holdings LLCA or the employment agreements of Tepperberg and ▇▇▇▇▇▇▇.
(vb) grant Subject to the provisions of this Section 7.10(b), the Sellers’ Representative shall serve as such from the date of this Agreement until the earlier of its resignation or the completion of its obligations hereunder. In the event of the death or permanent disability of the then-acting Sellers’ Representative, or if the then-acting Sellers’ Representative shall give notice of intent to resign, TAO Holdings shall, by written notice to ▇▇▇▇▇, appoint a successor ▇▇▇▇▇▇▇’ Representative (reasonably satisfactory to Buyer) as soon as practicable, and in no event later than 30 days following such death, permanent disability or notice of intent to resign. Any successor to the Sellers’ Representative shall for purposes of this Agreement be deemed to be, for the time of the appointment thereof, a Sellers’ Representative and from and after such time, the term “Sellers’ Representative” as used herein shall be deemed to refer to any consentsuccessor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(c) Sellers’ Representative shall not be liable to the Sellers for actions taken pursuant to this Agreement, approval except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence, Fraud or waiver 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 Sellers’ Representative shall be conclusive evidence of good faith). The Sellers shall, severally and not jointly, in accordance with their respective Pro Rata Portion, indemnify and hold harmless Sellers’ Representative from and against, compensate Sellers’ Representative for, reimburse Sellers’ Representative for and pay any and all losses (including reasonable and documented out-of-pocket expenses and legal fees) of the Sellers’ Representative arising out of and in connection with activities as Sellers’ Representative under this Agreement or any other Transaction Document;
Document (vi) make all other elections the “Representative Losses”), in each case as such Representative Loss is suffered or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documentsincurred; provided, however, that Hakkasan USA or its Affiliates shall have no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted liability to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of Agreement, including this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so requiredSection 7.10, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out amount that exceeds its Pro Rata Portion of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Seller’s Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining PrincipalsHoldback Amount; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely may, in its role sole discretion, recover the amount of representative such Representative Losses from the Sellers’ Representative Holdback Amount; provided further, however, that in the event it is finally adjudicated by a court of competent jurisdiction that a Representative Loss or any portion thereof was primarily caused by the Hatteras gross negligence, Fraud or bad faith of Sellers’ Representative, Sellers’ Representative shall reimburse the Sellers according the amount of such indemnified Representative Loss attributable to the terms of this Section 11.18. Accordinglysuch gross negligence, Fraud or bad faith.
(d) Each Seller agrees to reimburse, based on such Seller’s Pro Rata Portion, the Parties acknowledge Sellers’ Representative for any fees and agree that, expenses incurred by the Sellers’ Representative in its capacity as agent, proxy or attorney-in-fact of the Sellers in connection with this Agreement or the Transactions, including fees and expenses for attorneys, accountants and other advisors to assist it in the performance of its duties hereunder (the “Sellers’ RepresentativeRepresentative Expenses”) to the extent such Sellers’ Representative Expenses exceed the Sellers’ Representative Holdback Amount (as reduced for any Representative Losses that the Sellers’ Representative chose to recover from the Sellers’ Representative Holdback Amount pursuant to Section 7.10(c)).
(e) In the event that the Sellers’ Representative determines, in its sole and absolute discretion, that the funds paid to the Sellers’ Representative pursuant to Section 1.7(a)(v) exceed the Sellers’ Representative Expenses and Representative Losses that have been incurred or may in the future reasonably be incurred, the Sellers’ Representative shall have no liability topromptly pay to each Seller such Seller’s Pro Rata Portion of such excess, by wire transfer of immediately available funds to the account or accounts designated in writing by such Seller or its successors and shall not be liable for any Losses ofpermitted assigns to the Sellers’ Representative; provided that, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of unless otherwise agreed by the Sellers’ Representative under this Agreement or otherwise and Hakkasan USA, Hakkasan USA’s Pro Rata Portion of any such excess existing on November 30, 2023 shall be paid by the Sellers’ Representative to Hakkasan USA within five Business Days following such date.
(f) Each Seller agrees, in respect addition to the foregoing, that the provisions of this Agreement Section 7.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated herebyTransactions.
Appears in 1 contract
Sources: Transaction Agreement (Madison Square Garden Entertainment Corp.)
Sellers’ Representative. The Selling Parties hereby appoint VAM (athe “Sellers’ Representative”) Each as attorney-in-fact, authorizing it to act on their behalf to supervise the Closing, to execute and deliver any instruments of transfer or other documents required of Selling Parties and receive documents required of Buyer at the Hatteras Sellers Closing, to give and receive notices for the Selling Parties pursuant to Section 8.2 above, to receive and distribute the Purchase Price payable hereunder, to take any other action required or permitted by this Agreement (other than with respect to actions required or permitted under Section 2.6, except as provided therein), and to administer all other matters related to this Agreement, as contemplated by this Agreement. The Selling Parties hereby irrevocably constitutes, designates and appoints, authorizes and empowers confirm all actions that the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his shall do or her true and lawful attorney-in-fact and agent, with full power cause to be done by virtue of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve its appointment as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative of the Selling Parties. The Sellers’ Representative shall act for the Selling Parties on all of the matters set forth in this Agreement in the manner the Sellers’ Representative believes to be in the best interest of the Selling Parties and consistent with the obligations under this Agreement, but the Sellers’ Representative shall not be responsible to the Selling Parties for any Losses the Selling Parties may suffer by the performance of its sole discretion deems appropriate;
(iv) give duties under this Agreement, other than Losses arising from the willful misconduct or gross negligence in the performance of its duties under this Agreement. The Selling Parties agree jointly and receive severally to indemnify, defend and hold harmless the Sellers’ Representative and its officers, directors, members, employees and representatives from and against any and all notices pursuant to this Agreement Losses that may be incurred by any of them arising out of or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the in connection with its appointment as Sellers’ Representative under this Agreement (except such as may result from the Sellers’ Representative’s willful misconduct or gross negligence in the Transaction Documents; providedperformance of its duties under this Agreement), however, that no such failure to act on including the part legal costs of defending itself against any claim or Liability in connection with its performance under this Agreement and all other documents and agreements executed and delivered by the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute connection with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, each Selling Party and Buyer expressly acknowledge that the Sellers’ Representative shall have no liability to, and shall not be liable for authority or responsibility to act on behalf of any Losses of, any third Person, any Party or to any Indemnified Selling Party in connection with any obligationsclaim, actions action or failure proceeding initiated against such Selling Party pursuant to act a breach by such Selling Party of the Sellers’ Representative under this Agreement such Selling Party’s individual representations, warranties or otherwise in respect of this Agreement or the transactions contemplated herebycovenants hereunder.
Appears in 1 contract
Sources: Sale, Purchase and Put/Call Agreement (Federated Investors Inc /Pa/)
Sellers’ Representative. (a) Each of Seller irrevocably appoints the Hatteras Sellers hereby irrevocably constitutesRepresentative as such Seller’s representative, designates agent, proxy and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for all purposes under this Agreement and agentthe Escrow Agreement, with including the full power of substitution and authority to act on such Seller’s behalf: (i) to consummate the transactions contemplated by this Agreement (including with respect to the adjustments and distributions under Section 1.4) and the other agreements, instruments and documents contemplated hereby or resubstitutionexecuted in connection herewith (including the Escrow Agreement); (ii) to negotiate disputes arising under, or relating to, this Agreement (including with respect to perform all the adjustments and distributions under Section 1.4) and the other agreements, instruments and documents contemplated hereby or executed in connection herewith (including the Escrow Agreement); (iii) to calculate any amounts to be received by the Sellers hereunder or under the Operating Agreement and to receive and disburse to such acts (or to omit from taking Seller any action), funds received on behalf of each such Hatteras Seller, as are required, authorized or contemplated by the Sellers under this Agreement and the other Transaction Documents agreements, instruments and the transactions documents contemplated hereby and thereby, which includes or executed in connection herewith (including the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
Escrow Agreement); (iv) give and receive to withhold any and all notices amounts received on behalf of the Sellers pursuant to this Agreement or any other Transaction Document;
agreements, instruments and documents contemplated hereby or executed in connection herewith (including the Escrow Agreement) or otherwise to satisfy any and all obligations or liabilities incurred by the Sellers or the Sellers Representative in the performance of its duties hereunder and thereunder; (v) grant to execute and deliver any consent, approval amendment or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
agreement, instrument or document contemplated hereby or executed in connection herewith (viiiincluding the Escrow Agreement) receive, (without the prior approval of any of the Sellers); and enforce the right (vi) to receive, any payments contemplated hereunder take all other actions to be taken by or on behalf of the Hatteras Sellers for distribution to in connection with this Agreement or any other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Hatteras Sellers;
(ix) to enforce and protect the rights Escrow Agreement). Each of the Hatteras Sellers under further agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Sellers Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller. All decisions, actions, consents and instructions by the Sellers Representative shall require the consent of each Person constituting the Sellers Representative hereunder and shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Sellers Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement and the Transaction Documents Escrow Agreement.
(b) Each Seller severally, for itself only and not jointly, agrees to refrain from enforcing indemnify and hold harmless the Sellers Representative and its Representatives against all expenses (including attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any right Action to which the Sellers Representative or such other Person is made a party by reason of the Hatteras Sellers fact that it is or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereofwas acting as, or if Purchaser does not deliver at the Preliminary Statement within ninety (90) days after direction of, the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect Sellers Representative pursuant to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent terms of this Agreement and any other Transaction Documentagreement, and to amend instrument or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date document contemplated hereby or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller executed in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
herewith (b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to including the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerEscrow Agreement).
(c) If Sellers’ Neither the Sellers Representative nor any of its Representatives shall incur any liability to any Seller by virtue of the failure or its successors and permitted assigns, as refusal of such Persons for any reason to consummate the case may be, advise transactions contemplated hereby or relating to the Hatteras Sellers that it is unavailable to perform it performance of their duties hereunder, within thirty except for actions or omissions constituting actual, intentional and knowing fraud. The Sellers Representative and its Representatives shall have no liability in respect of any Action brought against such Persons by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action in good faith.
(30d) The Sellers Representative shall have the right to recover from, in its sole discretion, the Sellers Representative Escrow Fund and/or the Adjustment Escrow Fund prior to any distribution to the Sellers, the Sellers Representative’s (including its Representatives) out-of-pocket expenses incurred in the performance of its duties hereunder, including those resulting from the employment of financial advisors, attorneys, auditors and other advisors and agents assisting in the assessment of arbitration, litigation and settlement of any disputes arising under this Agreement or other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Escrow Agreement) and any fees of the Independent Accounting Firm pursuant to Section 1.4 (the “Charges”). In the event the Sellers Representative Escrow Fund and/or the Adjustment Escrow Fund are insufficient to satisfy the Charges, then each Seller will be obligated to pay his, her or its pro rata portion of such deficit (determined in accordance with Section 11.1(b) of the Operating Agreement based on the number and type of Company Units held immediately prior to the Closing, directly or indirectly, by such Seller as reasonably determined in good faith by the Sellers Representative). Following full reimbursement of all Charges, the Sellers Representative shall distribute to each Seller any remaining portion of the Sellers Representative Escrow Fund in accordance with Section 1.4.
(e) At any time prior to the distribution of the Sellers Representative Escrow Fund pursuant to Section 10.22(d) above, a majority-in-interest (determined in accordance with Section 11.1(b) of the Operating Agreement based on the number and type of Company Units held immediately prior to the Closing, directly or indirectly, by such Seller or Sellers) of the Sellers may, by written consent, appoint a new representative as the Sellers Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of the Sellers of a majority-in-interest of those Sellers must be delivered to the Buyer and each other Seller not less than ten (10) days of notice of prior to such advice, an alternative Sellers’ Representative appointment. Such appointment will be appointed by effective upon the remaining Principals; provided, however, that, unless later of the successor Sellers’ Representative date indicated in the consent and the date that is a Principal, the appointment of ten (10) days after such successor Sellers’ Representative shall be subject consent is delivered to the prior written consent of Purchaser Buyer.
(not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until f) In the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree event that the Sellers’ Sellers Representative is a party becomes unable or unwilling to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, continue in its capacity as Sellers’ Sellers Representative, or if the Sellers’ Sellers Representative resigns as the Sellers Representative, a majority-in-interest of the Sellers may, by written consent, appoint a new representative as the Sellers Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Sellers must be delivered to the Buyer and each Seller. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by the Buyer. Notwithstanding anything to the contrary contained herein (including, for the avoidance of doubt, Section 10.22(e)), without its prior written consent, Calera Capital shall only be replaced as a Sellers Representative hereunder by one of its Affiliates.
(g) The Buyer shall be entitled to rely upon any action or decision of, or instruction by, or any document or other paper delivered by, the Sellers Representative on behalf of the Sellers (without any obligation to inquire into the authority of the Sellers Representative or the genuineness or correctness of such document or other paper or any signature of the Sellers Representative), and the Buyer shall not be liable to any Seller for any action taken or omitted to be taken by the Buyer in such reliance or with respect to actions, decisions and determinations of the Sellers Representative. The Buyer shall not have no liability any right to object to, and shall cause its Affiliates (including after the Closing, the Blockers, the Company and the Company’s Subsidiaries) not be liable to, dissent from, protest or otherwise contest the authority of the Sellers Representative. Each of the Company, the Blockers and each Seller hereby waives any claim he, she or it may have or assert, including those that may arise in the future, against the Sellers Representative for any Losses ofaction or inaction taken or not taken by the Sellers Representative in such Person’s capacity as Sellers Representative, any third Personexcept to the extent such action or inaction shall have been held by a court of competent jurisdiction to constitute actual, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyintentional and knowing fraud.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mattress Firm Holding Corp.)
Sellers’ Representative. (a) Each At the Closing, each of the Hatteras Sellers hereby irrevocably constitutesIndemnifying Parties, designates shall appoint Shareholder Representative Services LLC as its agent and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give for and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution Indemnifying Parties to give and receive notices and communications (including to Buyer), to authorize payment to Buyer from the Hatteras Sellers;
(ix) Escrow Fund in satisfaction of claims by Parent or Buyer, to enforce object to such payments, to agree to, negotiate, enter into settlements and protect the rights compromises of, and comply with orders of the Hatteras Sellers under this Agreement and the Transaction Documents courts with respect to such claims, and to refrain from enforcing any right take all other actions that are either (i) necessary or appropriate in the judgment of the Hatteras Sellers or the Sellers’ Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or Agreement. Such agency may be changed by the Transaction DocumentsIndemnifying Parties from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, however, that no the Sellers’ Representative may resign at any time, and may not be removed unless holders whose aggregate Pro Rata Share is a majority of the Aggregate Cash Consideration and the aggregate Stock Consideration payable hereunder agree to such failure removal and to act on the part identity of the substituted agent. No bond shall be required of the Sellers’ Representative, and the Sellers’ Representative shall not receive any compensation for its services other than pursuant to the terms of that certain Engagement Agreement to be deemed a waiver entered into by and among Shareholder Representative Services LLC, the Company and certain of such right the Sellers. After the Closing, notices or interest of any Hatteras Seller communications to or from the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide shall constitute notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver from the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsIndemnifying Parties.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall not be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned liable for any act done or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative omitted hereunder as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party while acting in good faith and without gross negligence. The Sellers shall indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any loss, liability, damages, claims, penalties, fines, forfeitures, actions, fees, costs or expenses arising out of or in connection with the acceptance or administration of the Sellers’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Sellers’ Representative, the expenses of the Paying Agent arising from its obligations with respect to Sections 2.4(d) and (e), and expenses incurred pursuant to this Agreement solely Section 9 (“Sellers’ Representative Expenses”), in its role of representative each case as such Sellers’ Representative Expense is incurred; provided, that in the event that any such Sellers’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or bad faith of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative will reimburse the Sellers the amount of such indemnified Sellers’ Representative Expense to the extent attributable to such gross negligence or bad faith. Following the Closing, the Sellers’ Representative shall have the right to recover Sellers’ Representative Expenses first, from the Expense Fund and finally from the Founder and the Outside Sellers according to their respective Pro Rata Share (including from amounts that otherwise would have been payable to Founder and the Outside Sellers from the Escrow Fund); provided, that while this section allows the Sellers’ Representative to be paid from the Expense Fund and upon release of the Escrow Fund to the Indemnifying Parties, this does not relieve the Founder and the Outside Sellers from their obligation to promptly pay such Sellers’ Representative Expenses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no liability to, event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. The Sellers acknowledge and shall not be liable for any Losses of, any third Person, any Party agree that the foregoing indemnities will survive the resignation or to any Indemnified Party in connection with any obligations, actions or failure to act removal of the Sellers’ Representative under this Agreement or otherwise in respect the termination of this Agreement Agreement. Notwithstanding the foregoing, the Sellers’ Representative’s right to recover Sellers’ Representative Expenses shall not prejudice Buyer’s right to recover the full amount of indemnifiable Losses that Buyer is entitled to recover as provided in this Section 9.
(c) A decision, act, consent or instruction of the transactions contemplated herebySellers’ Representative, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers; and Parent and Buyer may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Parent and Buyer are hereby relieved from any liability to any Person for any acts done by it or its Affiliates or Representatives in accordance with such decision, act, consent or instruction of the Sellers’ Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (Zynga Inc)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Hatteras Sellers hereby irrevocably constitutesStatement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, designates and appointsincluding waiving any such condition if Sellers’ Representative, authorizes and empowers the in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and each successor appointed Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 11.18(c9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as itsdetermined by Sellers’ Representative in his sole discretion, his in connection with the payment of the costs and expenses incurred with respect to the Companies or her such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution or and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such acts Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to omit from taking any action), act on behalf of each such Hatteras Seller, as are requirednotwithstanding any dispute or disagreement among the Sellers, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable Purchaser shall be entitled to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive rely on any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated action taken by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Transaction Documents; providedSellers, however, that no such failure to act notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be deemed entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a waiver of such right or interest of any Hatteras Seller or reserve to be held by the Sellers’ Representative unless such waiver is in writing signed by and used for the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 non-exclusive purposes of funding any items expenses of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to arising in connection with the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party administration of his duties pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be have the only person authorized sole and absolute discretion to take any action so required, authorized or contemplated determine the use of such funds. Any portion of such funds that have not been used by this Agreement the Sellers’ Representative by any Hatteras Seller and, without limiting the generality second (2nd) anniversary of the foregoing, Purchaser Closing Date shall be required to provide notices distributed to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect entitled to continue to hold and not distribute any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being grantedfunds which he, in parthis sole and absolute discretion, as an inducement to deems prudent or necessary for payment of anticipated expenses associated with the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation discharge of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it his duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Equity Purchase Agreement (Ryan Specialty Group Holdings, Inc.)
Sellers’ Representative. ARLP, JRLLC and LRLLC (athe “Co-Owners”) Each of the Hatteras Sellers each hereby irrevocably constitutes, designates appoints CELLC the agent and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact of the Co-Owners for the purposes of acting in the name and agent, with full power stead of substitution the Co-Owners in: (a) giving and receiving all notices permitted or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated required by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder acting on behalf of the Hatteras Sellers Co-Owners for distribution all purposes under this Agreement; (b) dealing with the Buyer in connection with all adjustments under Section 2 including, without limitation, all Title Defects, Environmental Defects and cures relating thereto and all Title Benefits, Gas Imbalances, Casualties and accounting adjustments; (c) acting on the Co-Owners’ behalf under any other covenant, agreement or provision of this Agreement; (d) agreeing with the Buyer as to any amendments to this Agreement which CELLC may deem necessary or advisable, including but not limited to the Hatteras Sellers;
(ix) extension of time in which to enforce and protect consummate the rights of the Hatteras Sellers under transactions contemplated by this Agreement Agreement, and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
closing conditions; (xe) review the Preliminary Statement employing legal counsel; (f) paying any legal and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs other fees and expenses incurred in respect ofconsummating the transactions contemplated by this Agreement; and (g) making, or charged byexecuting, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article Xacknowledging, and (B) to defend any delivering all such Buyer Indemnified Party from any Loss under Article Xcontracts, includingorders, where appropriatereceipts, retaining legal counsel or notices, requests, instructions, certificates, letters, and other advisors writings, and in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X general doing all things and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to dotaking all actions which CELLC, or which Sellers’ Representative in its sole discretion determines is desirable to dodiscretion, pursuant to may consider necessary or proper in connection with or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination terms of this Agreement, as fully as if the Co-Owners were personally present and acting. The Sellers’ Representative shall be This power of attorney and all authority conferred hereby is granted and conferred subject to the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality interests of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant other Parties to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent Agreement, and in consideration of those interests and for service the purpose of process with respect to any disputes regarding or arising out of this Agreement or completing the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name , this power of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 attorney and all authority conferred hereby shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses ofterminated by the Co-Owners or by operation of law, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act whether by the incapacity of the Sellers’ Representative under this Agreement Co-Owners or otherwise in respect by the occurrence of this Agreement or the transactions contemplated herebyany other event.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gastar Exploration USA, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers directs the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsits agent, his or her true and lawful proxy, attorney-in-fact and agent, with full power of substitution or resubstitution, representative under the Transaction Documents to perform all take such acts (or to omit from taking any action), action on behalf of each such Hatteras Seller, and to exercise such rights, power and authority, as are requiredauthorized, authorized or contemplated by this Agreement delegated and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of pursuant to this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller andincluding, without limiting the generality of the foregoing, Purchaser shall (i) execution, delivery and receipt of the Escrow Agreement, (ii) preparation and delivery of the certificate pursuant to Section 4.1(a)(iii) hereof, (iii) the right to receive notices and other documentation, pursuant to the terms of this Agreement, on behalf of the Sellers, (iv) amending and waiving the terms of this Agreement pursuant to Section 9.9 hereof, but excluding, without the prior consent of all Sellers, any change that would be inconsistent with the LLC Agreement, (v) receipt of the Purchase Price and amounts, if any, in the Escrow Account, on behalf of the Sellers, pursuant to Sections 2.1(b) and 2.2 and distribution thereof to the Sellers in accordance with Section 8.5, (vi) termination of the Agreement pursuant to Section 6.1 hereof, (vii) settlement of any claims for which the Sellers may be required to provide notices indemnify or pay to, or entitled to the Hatteras Sellers indemnification or payment from, Buyer pursuant to this Agreement solely to Sellers’ Representative. The Agreement, and (viii) any other actions contemplated by or in furtherance of this Agreement.
(b) Each Seller agrees that (i) the Sellers’ Representative shall not be each Hatteras Seller’s agent liable for service of process any actions taken or omitted to be taken under or in connection with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action , except for such actions taken by or omitted to be taken resulting from the Sellers’ Representative’s willful misconduct, (ii) the Sellers’ Representative shall not owe any fiduciary duty or have any fiduciary responsibility to any of Sellers or the Company as a result of any actions taken as the Sellers’ Representative pursuant to this Agreement, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s willful misconduct, respectively, and (iii) each Seller, severally and not jointly, in accordance with such Seller’s Pro Rata Portion, shall defend, indemnify and hold harmless the name Sellers’ Representative and its Affiliates and each of their respective officers, directors, employers and agents from and against all expenses (including fees and expenses of counsel) losses, claims, fines, liabilities, damages, judgments or amounts paid in settlement in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on, arising out of or on behalf relating to the fact that such Person is or was a Sellers’ Representative hereunder or arising out of any Hatteras Seller acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the deathtransactions contemplated hereby) except for, incompetencyin any case, bankruptcy acts or liquidation omissions which involve conduct known to such Person at the time to constitute a material violation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerLaw.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative Buyer shall be subject entitled to rely conclusively on the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively instructions and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative required or permitted to be taken by the Sellers’ Representative under this Agreement any Transaction Document, and no Seller shall have any cause of action against Buyer or otherwise its Affiliates for any action taken by Buyer in respect reliance upon the instructions or decisions of this Agreement or the transactions contemplated herebySellers’ Representative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller, on behalf of such Seller and such Seller’s successors, heirs and permitted assigns, hereby irrevocably appoints Holdings as the “Sellers’ Representative” as such Sellers’ agent and attorney-in-fact for all purposes set forth in this Agreement, including the full power and authority (i) to perform the Transactions to be performed by a Seller under this Agreement, (ii) to disburse any funds received hereunder to Sellers, (iii) to execute and deliver on behalf of each Seller any amendment or waiver under this Agreement and to agree to resolution of all claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of Sellers, in connection with the performance by the Sellers’ Representative of this Agreement, (v) to give and receive notices on behalf of the Hatteras Sellers, (vi) to make, dispute, and settle all claims under this Agreement, including, without limitation, claims relating to the purchase price, adjustments, escrow releases, and indemnification claims, (vii) to withhold payments otherwise due to the Sellers hereby irrevocably constitutesin order to establish reserves for purchase price adjustments or other amounts that might be due by the Sellers and to pay (or seek reimbursement whether or not from the Sellers’ Representative Expense Fund) on behalf of the Sellers any amounts due by them to Buyer, designates and appointsany Indemnitee, authorizes and empowers or the Sellers’ Representative (and each successor appointed in accordance with other than indemnification claims under Section 11.18(c8.1(a)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and (viii) to interpret the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent terms of this Agreement and any other Transaction Document;agreement entered into in connection therewith, and (ix) to do each and every act (including the execution and delivery of any certificates required) and exercise all rights which any such Seller is permitted or required to do or exercise under this Agreement.
(iib) determine whether The Sellers’ Representative will have no liability to any Seller for any act done or omitted under this Agreement as the conditions Sellers’ Representative while acting in good faith and not in a manner constituting wanton misconduct, and any act done or omitted pursuant to Closing the advice of counsel will be conclusive evidence of such good faith. The Sellers will severally (in Article VII have been satisfied;accordance with their Pro Rata Share) indemnify and hold harmless the Sellers’ Representative from and against any Losses the Sellers’ Representative may suffer as a result of any such action or omission.
(iiic) serve The Sellers’ Representative will receive no compensation for services as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative. The Sellers will reimburse the Sellers’ Representative in its sole discretion deems appropriate;
(iv) give accordance with their Pro Rata Share for professional fees and receive expenses of any and all notices pursuant to this Agreement attorney, accountant or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated advisors retained by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative and other reasonable out-of-pocket expenses incurred by the Sellers’ Representative in connection with the performance of the Sellers’ Representative’s duties under this Agreement or Agreement. An amount equal to the Transaction Documents; providedSellers’ Representative Expense Fund will be delivered to the Sellers’ Representative at the Closing to be held in trust as a source of such reimbursement for costs and out-of-pocket expenses (including costs of professional advisers) incurred by the Sellers’ Representative for its obligations in connection with this Agreement, however, that no such failure to act on the part with any balance of the Sellers’ Representative shall Expense Fund not incurred for such purposes to be deemed a waiver of distributed to the Sellers in accordance with their Pro Rata Share at such right or interest of any Hatteras Seller or times as determined by Sellers’ Representative.
(d) If the Sellers’ Representative unless resigns or is otherwise unable or unwilling to serve in such waiver capacity, the Sellers who held the majority of the Units immediately prior to the Closing Date will appoint a new Person to serve as the Sellers’ Representative and will provide prompt written notice thereof to Buyer. Until such notice is in writing signed by received, Buyer will be entitled to rely on the actions and statements of the previous the Sellers’ Representative;. The power and authority granted hereunder will be exclusive and no Seller shall be entitled to exercise any right under this Agreement except through the Sellers’ Representative.
(xe) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 The appointment of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to as the attorney-in-fact for each Seller as set forth in this Section 11.16 and all authority hereby conferred are granted and conferred in consideration of the interest of the other Sellers’ Representative;
(xiii) resolve or , is therefore coupled with an interest and is and will be irrevocable and shall neither be terminated nor otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted affected by any act of any Seller or by operation of law, whether by the death, dissolution, liquidation, incapacity or incompetence of such Buyer Indemnified Party pursuant to Article XSeller or by the occurrence of any other event. If, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of after the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent execution of this Agreement and Agreement, any other Transaction DocumentSeller dies, and to amend dissolves or supplement any of the foregoing. All of the indemnitiesliquidates or becomes incapacitated or incompetent, immunities and powers granted to the Sellers’ Representative under is nevertheless authorized, empowered and directed to act in accordance with this Section 11.16 as if that death, dissolution, liquidation, incapacity or incompetency had not occurred and regardless of notice thereof. Each Seller agrees to execute such ▇▇▇▇▇ and documents as may be necessary and to give such instructions to his personal representatives as may be necessary so that its successors will remain subject to this Agreement shall survive and carry out the Closing Date or termination of this Agreementfull intent and purposes hereof. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser shall this Section 11.16 will not be required to provide notices to affected by the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding subsequent incapacity or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf mental incompetency of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(cf) If Each Seller and the Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Buyer may rely on Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act appointment of the Sellers’ Representative under this Agreement or otherwise in respect and deal exclusively with the Sellers’ Representative, consistent with such appointment as provided herein and the provisions of this Agreement dealing with actions to be taken by the Sellers’ Representative on behalf of Sellers, and Sellers and Sellers’ Representative agree to indemnify and save harmless Buyer (in accordance with their Pro Rata Shares) from and against any Loss or Liability that it may incur by reason of its relying upon the transactions contemplated herebyauthority of the Sellers’ Representative as provided herein. All payments by Buyer to the Sellers’ Representative, or to an account designated by the Sellers’ Representative, for the benefit of Sellers as provided in this Agreement shall constitute a full acquittance of Buyer with respect thereto, and Buyer shall have no obligation to see to the application of such payments.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller by executing this Agreement hereby irrevocably constitutes, designates constitutes and appoints, authorizes and empowers appoints ▇▇▇ ▇▇▇▇▇▇▇ as the Sellers’ Representative (the “Sellers’ Representative”), with full power and each successor appointed authority to act in accordance the name of and for and on behalf of such Seller with Section 11.18(c)respect to all matters arising in connection with, or related to, this Agreement and the transactions contemplated hereby. Each Seller hereby appoints the Sellers’ Representative (a) as its, his or her the agent and true and lawful attorney-in-fact and agentof such Seller, with full power of substitution or resubstitutionsubstitution, and with full capacity and authority in its sole discretion, to perform all such acts (or to omit from taking any action), act in the name of and for and on behalf of each such Hatteras SellerSeller in connection with all matters arising out of, as are requiredresulting from, authorized or contemplated by or related or incident to this Agreement and the other Transaction Documents and the transactions contemplated hereby, and (b) the agent for service of process for such Seller, and such Seller hereby and thereby, which includes irrevocably consents to the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent service of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant process in any action or proceeding arising out of or relating to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver delivery of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services process to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser the power of the Sellers’ Representative shall include the power to represent such Seller with respect to all aspects of this Agreement and the transactions contemplated hereby, which power shall include the power to (i) waive any and all conditions of this Agreement, (ii) amend, modify or supplement this Agreement in any respect, (iii) defend, negotiate or settle any claims or actions for indemnity pursuant to Article 10, (iv) retain legal counsel or accountants and be reimbursed by the Sellers for all fees, expenses and other charges of such legal counsel or accountants, (v) receive notices or other communications, (vi) deliver any notices, certificates or other documents required hereunder, (vii) take all such other action and to provide notices to do all such other things as the Hatteras Sellers pursuant Sellers’ Representative deems necessary, appropriate, desirable or advisable with respect to this Agreement solely and the transactions contemplated hereby and (ix) perform its obligations as set forth in, and in accordance with, this Agreement. Each Seller agrees that Purchaser and its Affiliates shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Sellers’ Representative on behalf of the Sellers and shall have no liability with respect thereto, and none of Purchaser or any of its Affiliates shall have any duty to inquire as to the acts and omissions of the Sellers’ Representative. The Purchaser shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Sellers’ Representative and any Seller; and any disclosure made to the Sellers’ Representative by or on behalf of Purchaser shall be deemed to be a disclosure made to each Seller. Each Seller that makes a claim against Purchaser alleging the lack of authority of the Sellers’ Representative shall be each Hatteras Seller’s agent indemnify Purchaser and its Affiliates for service any damages suffered, including reasonable attorneys’ fees and other costs, as a result of process with respect to any disputes regarding Purchasers’ good faith reliance on the acts or arising out omissions of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsRepresentative.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject promptly forward to each Seller all notices he receives regarding or arising under this Agreement and shall keep each Seller fully informed on all matters relating to the prior written consent of Purchaser (not to be unreasonably withhelddefense, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquirynegotiating, and until the receipt settlement of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered claim or other action taken by any Hatteras Seller for indemnity pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according Article 10, including but not limited to the terms selection and retention of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party legal counsel or to any Indemnified Party accountants in connection with any obligations, actions such claim or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyaction.
Appears in 1 contract
Sellers’ Representative. (a) Each By virtue of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power execution of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Optionee Joinder Agreement and without any other Transaction Document;
(ii) determine whether further action of the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement Company or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce Equityholders, each Equityholder hereby irrevocably agrees, constitutes and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or appoints Fortis Advisors LLC, a Delaware limited liability company as the Sellers’ Representative under this Agreement, the Paying Agent Agreement or and the Transaction Documents; providedSellers’ Representative Engagement Agreement, howeverand by the execution of this Agreement as Sellers’ Representative, that no such failure the Sellers’ Representative ▇▇▇▇▇▇ accepts its appointment, as the exclusive and lawful agent and attorney-in-fact of each of the Equityholders following the Closing (i) to act on as a representative of the part Equityholders under this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement and to have the right, power and authority to perform all actions (or refrain from taking any actions) the Sellers’ Representative shall, in its sole discretion, deem necessary, appropriate or advisable in connection with, or related to, this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement and the Transactions, (ii) to act in the name, place and stead of each Equityholder in connection with the Transactions, in accordance with the terms and provisions of this Agreement, and in any Action involving this Agreement, and (iii) to execute and deliver all such documents as the Sellers’ Representative shall, in its sole discretion, deem necessary, appropriate or advisable in connection with, or related to, this Agreement and the Transactions. Notwithstanding the foregoing or Section 12.12(b), the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice have no obligation to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or Equityholders, except as expressly provided herein, in the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Paying Agent Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to in the Sellers’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. It is further clarified that none of Purchaser, the Company or their Affiliates shall have any obligation under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall Engagement Agreement, nor will Sellers’ Representative be entitled to any fee, commission or other compensation from Purchaser, the only person authorized to take Company or any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting of their Affiliates for the performance of its services hereunder.
(b) Without derogating from the generality of the foregoing, Purchaser shall be required to provide notices to as of the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Closing Date, the Sellers’ Representative shall have the right, power and authority to (i) act for the Equityholders with regard to all matters set forth in this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement; (ii) execute and deliver all amendments, waivers, ancillary agreements and documents that the Sellers’ Representative deems necessary or appropriate in connection with the consummation of the Transactions; (iii) instruct payment from the Expense Fund, and otherwise receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses; (iv) do or refrain from doing any further act or deed on behalf of the Equityholders that the Sellers’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement as fully and completely as the Equityholders could do if personally present; (v) deliver and receive all notices or other communications or documents given or to be each Hatteras Seller’s agent for given to or from the Sellers’ Representative by Purchaser pursuant to this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement; (vi) receive service of process on behalf of any Equityholders in connection with any claims under this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement; (vii) negotiate, undertake, bring action regarding, compromise, settle, consent, defend, object, resolve and settle any Action under this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement on behalf of the Equityholders including with respect to the Earnout Consideration; (viii) negotiate and resolve with Purchaser the determination of the Final Closing Date Purchase Price pursuant to Section 2.8; (ix) to make any disputes regarding payments or arising out of pay any expenses under or in connection with this Agreement, the Paying Agent Agreement or and the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of Engagement Agreement or on behalf of any Hatteras Seller the Equityholders; (x) engage counsel, accountants and other advisors and incur such other expenses in connection with any matter arising of the Transactions; (xi) agree to any modification or amendment of, or supplements to, or waiver relating to this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement and execute and deliver an agreement of such modification, amendment, supplement or waiver; and (xii) take or refrain from taking all such other actions as the Sellers’ Representative may deem necessary, appropriate or advisable to carry out the intents and purposes of this Agreement, in each case without having to seek or obtain the consent of any Equityholders under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsany circumstance.
(bc) The grant of authority to Sellers’ Representative provided for in this Section 11.18: 12.12 and the immunities and rights to indemnification granted by the Equityholders to the Sellers’ Representative Group hereunder (i) is are coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller Equityholder and will shall be binding on any successor thereto; and , (ii) subject to this Section 11.17shall survive the consummation of the Transactions and (iii) shall survive the delivery of an assignment by any Equityholder of the whole or any fraction of his, may be exercised by her or its interest in the Adjustment Holdback Amount. All actions, decisions and instructions of the Sellers’ Representative acting shall be conclusive and binding upon all of the Equityholders. Each of the Equityholders acknowledges and agrees that upon execution of this Agreement, upon any delivery by signing as the Sellers’ Representative of any Hatteras Seller.
(c) If waiver, amendment, agreement, opinion, certificate or other document executed by the Sellers’ Representative, such Equityholder shall be bound by such documents as fully as if such Equityholder had executed and delivered such documents. Any decision, act, consent, or instruction of the Sellers’ Representative under this Agreement, the Paying Agent Agreement or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will Engagement Agreement shall constitute a decision of each Equityholder and shall be appointed final, binding, and conclusive upon each Equityholder and such Equityholder’s successors as if expressly confirmed and ratified in writing by such Equityholder, and all defenses which may be available to any Equityholder to contest, negate or disaffirm the remaining Principals; provided, however, that, unless action of the successor Sellers’ Representative is a Principaltaken in good faith under this Agreement, the appointment Paying Agent Agreement or the Sellers’ Representative Engagement Agreement are waived, and Purchaser and the Company shall have the right to rely, without independent investigation, upon all actions taken or omitted to be taken by the Sellers’ Representative pursuant to this Agreement, the Paying Agent Agreement or the Sellers’ Representative Engagement Agreement, all of such successor which actions or omissions shall be legally binding upon the Equityholder. Purchaser and the Company shall be fully protected in dealing with the Sellers’ Representative under this Agreement and may rely upon the authority of the Sellers’ Representative to act on behalf of the Equityholders. The Sellers’ Representative shall be subject entitled to: (A) rely upon the Allocation Schedule, (B) rely upon any signature believed by it to be genuine, and (C) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Equityholder or other party
(d) At the Closing, Purchaser will deliver to an account designated by the Sellers’ Representative a cash amount of $50,000 (the “Expense Fund”). The Expense Fund shall be held by the Sellers’ Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Sellers’ Representative for any Representative Expenses incurred pursuant to this Agreement, the Paying Agent Agreement or the Sellers’ Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group The Sellers’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Sellers’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the prior written consent Sellers’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Sellers’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of Purchaser (not bankruptcy. Subject to Advisory Group approval, the Sellers’ Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Sellers. As soon as reasonably determined by the Sellers’ Representative that the Expense Fund is no longer required to be unreasonably withheld, conditioned or delayedthe Sellers’ Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for distribution to the Equityholders in accordance with the Allocation Schedule. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Sellers at the time of the Closing.
(e) Certain Sellers have entered into an engagement agreement (the “Sellers’ Representative Engagement Agreement”) with the Sellers’ Representative to provide direction to the Representative in connection with its services under this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Any references Neither the Sellers’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Sellers’ Representative Group”), shall be liable to any Equityholder for any action or failure to act in this connection with the acceptance or administration of the Sellers’ Representative’s responsibilities hereunder, under the Paying Agent Agreement or under the Sellers’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Sellers’ Representative shall not be deemed liable to include the Equityholders for any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered action or other action taken by any Hatteras Seller omission pursuant to this Agreement except for Sellers’ Representativethe advice of counsel. The Parties acknowledge Equityholders shall indemnify, defend and agree that hold harmless the Sellers’ Representative Group against any and all reasonable and documented losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines, amounts paid in settlement (collectively, “Representative Losses”) arising out of or in connection with this Agreement, the Paying Agent Agreement or the Sellers’ Representative Engagement Agreement, in each case as such Representative Loss is a party suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to this Agreement solely in its role of representative have been primarily caused by the gross negligence or willful misconduct of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability towill reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders, and (iii) directly by the Equityholders; provided, that while the Sellers’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. The Equityholders acknowledge that the Sellers’ Representative shall not be liable for required to expend or risk its own funds or otherwise incur any Losses financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Paying Agent Agreement, the Sellers’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Sellers’ Representative shall not be required to take any action unless the Sellers’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Sellers’ Representative against the costs, expenses and liabilities which may be incurred by the Sellers’ Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative hereunder. The Sellers’ Representative may resign at any third Persontime and may be removed or replaced by the vote of the Advisory Group. The foregoing immunities and indemnities will survive the Closing, any Party the resignation or to any Indemnified Party in connection with any obligations, actions or failure to act removal of the Sellers’ Representative under this Agreement or otherwise in respect any member of the Advisory Group or the termination of this Agreement Agreement.
(f) Notwithstanding anything to the contrary in this Section 12.12, the provisions of this Section 12.12 do not affect any right of Purchaser hereunder or create any obligation on the transactions contemplated herebypart of Purchaser.
Appears in 1 contract
Sellers’ Representative. (a) Each By virtue of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers adoption of this Agreement by the Sellers’ Representative (and , each successor Seller will be deemed to have irrevocably appointed in accordance with Section 11.18(c)) Endeavour Capital Fund VI, L.P., as itshis, his her or her its true and lawful attorney-in-fact and agentagent (as may be replaced in accordance with Section 2.7(d) below) (the “Sellers’ Representative”), each with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act solely and exclusively on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller with respect to this Agreement and the other Transaction Documents transactions contemplated hereby, and to act on behalf of such Seller in any Suits involving this Agreement or the Ancillary Documents, to do or refrain from doing all such further acts and things and to execute all such documents as the Sellers’ Representative shall reasonably deem necessary or appropriate in connection with this Agreement and the transactions contemplated hereby and therebyhereby, which includes including the power and authority topower:
(i) execute to act for such Seller with regard to matters pertaining to the indemnification referred to in this Agreement, including the power to investigate, defend, prosecute, pay, assume, direct and/or control the defense of, engage counsel in respect of, settle or compromise any indemnity claim on behalf of such Seller and deliver all documents necessary otherwise exercise any rights or desirable pursue any remedies of such Seller pursuant to carry out the intent Article IX of this Agreement and or to refrain from doing any other Transaction Documentof the foregoing;
(ii) determine whether the conditions to Closing in Article VII have been satisfiedact for such Seller with regard to matters pertaining to Taxes pursuant to Section 8.2;
(iii) serve as to execute and deliver all waivers, consents, agreements, documents and instruments (including the named party (not Ancillary Documents) in his individualconnection with the transactions contemplated hereby or any renewals, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as amendments or terminations thereto that the Sellers’ Representative in its sole discretion deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give and receive any and all notices pursuant to this Agreement or any other Transaction Documentreceipts for funds on behalf of such Seller;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Documentto receive funds for the payment of expenses of such Seller and apply such funds in payment for such expenses;
(vi) make all to provide notices, instructions and other elections or decisions contemplated by communications pursuant to and in connection with this Agreement or any other Transaction Documentand the Ancillary Documents on behalf of such Seller;
(vii) approve waiversto make all decisions and take all actions relating to such Seller’s rights, clarifications or post-Closing modifications to obligations and remedies under this Agreement or any other Transaction Documentand the Ancillary Documents;
(viii) receive, and enforce the right to receive, do or refrain from doing any payments contemplated hereunder further act or deed on behalf of such Seller that the Hatteras Sellers for distribution Sellers’ Representative deems necessary or appropriate in the Sellers’ Representative’s sole discretion relating to the Hatteras Sellers;subject matter of this Agreement as fully and completely as such Seller could do if personally present; and
(ix) to enforce and protect the rights receive service of the Hatteras Sellers process in connection with any claims under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part Agreement.
(b) The appointment of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being grantedshall be irrevocable, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and shall survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller Seller, and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as shall survive the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed)Closing. Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser Buyer may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18herein until receipt of notice of the appointment of a successor Sellers’ Representative upon thirty (30) days prior written notice to ▇▇▇▇▇. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other Any action taken by any Hatteras Seller pursuant to this Agreement except for the Sellers’ Representative must be in writing and must be signed by the Sellers’ Representative. The Parties acknowledge All notices required to be made or delivered by Buyer to any of the Sellers under this Agreement shall be made to the Sellers’ Representative for the benefit of such Seller and agree shall discharge in full all notice requirements of Buyer to such Seller with respect thereto. By their appointment of the Sellers’ Representative, the Sellers hereby confirm that the Sellers’ Representative is shall do or cause to be done by virtue of its appointment as the representative of the Sellers hereunder. The Sellers’ Representative shall act for the Sellers on all of the matters set forth in this Agreement (including the Ancillary Documents) in the manner the Sellers’ Representative reasonably believes to be in the best interest of the Sellers and in a party manner consistent with the obligations of the Sellers under this Agreement. The Sellers’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties or liabilities, or the existence of any partnership or other fiduciary relationship between the Sellers and the Sellers’ Representative shall be read into this Agreement or shall otherwise exist against Sellers’ Representative or any of its Affiliates. By execution of this Agreement, each Seller hereby agrees (i) to reimburse the Sellers’ Representative for all out-of-pocket costs and expenses incurred by Sellers’ Representative under this Agreement, including fees for any attorneys or other Representative that may be employed, and (ii) to severally and not jointly, in accordance with its Allocable Percentage, indemnify and hold harmless and defend the Sellers’ Representative, its agents and assigns against all losses arising out of or in connection with (A) the Sellers’ Representative’s omissions to act, or actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to this Agreement, or (B) services rendered with respect to this Agreement solely or reasonably believed to be in its role of representative the scope of the Hatteras Sellers’ Representative’s authority under this Agreement.
(c) The decision of each Seller to approve this Agreement, and/or accept any portion of the consideration pursuant to this Agreement has been made by such Seller independently of any other Seller and independently of any information, materials, statements or opinions as to the terms and conditions of this Agreement that may have been made or given by the Sellers’ Representative, any other Seller or by any Representative of Sellers’ Representative, or any other Seller, and neither the Sellers’ Representative nor any Seller or any of their respective Representatives shall have any liability to any other Seller (or any Person) relating to or arising from any such information, materials, statement or opinions, except as expressly provided in a written agreement, if any, between or among the Sellers.
(d) In the event that the Sellers’ Representative resigns from its position as the Sellers’ Representative, the Sellers according owning greater than fifty (50%) percent of the Units immediately prior to Closing (as reflected on Exhibit A) shall select a replacement Sellers’ Representative, which replacement Sellers’ Representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(e) The Sellers’ Representative Fund shall be available to the Sellers’ Representative: (i) as a source of recovery for any fees, costs, expenses or liabilities incurred by the Sellers’ Representative in connection with the performance of its duties under this Agreement or any Ancillary Documents; and (ii) as a source of payment for any amounts owed by the Sellers pursuant to the terms of this Section 11.18Agreement or any Ancillary Documents. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act Any portion of the Sellers’ Representative under this Agreement or otherwise Fund remaining following the determination of all such fees, costs, expenses, liabilities and amounts by the Sellers’ Representative in respect its sole discretion shall be distributed by the Sellers’ Representative to each Seller of this Agreement or an amount equal to such Seller’s Allocable Percentages of such remaining portion of the transactions contemplated herebySellers’ Representative Fund.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller, by virtue of the Hatteras Sellers his, her or its execution and delivery of this Agreement, hereby irrevocably constitutesnominates, designates constitutes and appoints, authorizes and empowers appoints the Sellers’ Representative (as the agent, agent for service of process and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentof the Sellers, with full power of substitution or resubstitutionsubstitution, to perform all act in the name, place and stead of such acts (or Seller with respect to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and taking by the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive of any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement actions and the Transaction Documents and making of any decisions required or permitted to refrain from enforcing any right of the Hatteras Sellers be taken or made by the Sellers’ Representative under this Agreement including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of the Transaction Documents; providedSellers or otherwise) any and all documents, howeverincluding without limitation the Working Capital Escrow Agreement and the Indemnification Escrow Agreement, and to take any and all actions that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is may, in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereofits sole discretion, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement determine to be deemed the Preliminary Statement and the Final necessary, desirable or appropriate in connection with any matter covered in Section 2.05 (Post Closing Working Capital Statement, and agree upon Adjustment) or any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article ARTICLE X (Indemnification) (including negotiating, entering into compromises or settlements of and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers demanding arbitration with respect to any claims against Purchaser relating to such matters covered in Section 2.05 (Post Closing Adjustment) or any indemnification claim, as applicable); (ii) update the Percentage Allocations in Schedule 1.1(c); (iii) give and receive notices and communications under this Agreement or Agreement, the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Working Capital Escrow Agreement and any other Transaction Document, the Indemnification Escrow Agreement; and (iv) take such actions as the Managing Member or Board of Managers under the organizational documents of SF Holdco would be permitted to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted take (subject to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination terms of this Agreementsuch organizational documents as they exist immediately prior to Closing). The Sellers’ Representative shall be hereby accepts its appointment as the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant power of authority provided for attorney granted in this Section 11.18: 11.01 (i) is coupled with an interest and is being granted, in part, as an inducement to irrevocable; (ii) may be delegated by the Parties to enter into this Agreement Sellers’ Representative; and will be irrevocable and (iii) shall survive the death, incompetencyincapacity, bankruptcy dissolution or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by each of the Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Notwithstanding anything to the contrary contained in this Agreement, Buyer shall be entitled to deal exclusively with the Sellers’ Representative or its successors on all matters relating to Section 2.05 (Post Closing Adjustment), the Working Capital Escrow Agreement and permitted assignsthe Indemnification Escrow Agreement, as and each Buyer Indemnified Party shall be entitled to deal exclusively with the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will on all matters relating to ARTICLE X (Indemnification), and each of them shall be appointed entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by the remaining Principals; providedSellers’ Representative, howeverand on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as fully binding upon such Seller. Each Seller hereby acknowledges and agrees that, unless with respect to any payments hereunder which are payable by Buyer to the successor Sellers’ Representative, so long as Buyer pays the Sellers’ Representative is the amount owed hereunder, such Seller shall not bring any Action against Buyer with respect to the amount such Seller receives from the Sellers’ Representative (including any adjustments to such Seller’s Percentage Allocations set forth on Schedule 1.1(c)).
(d) The Sellers’ Representative may at any time designate a Principalreplacement Sellers’ Representative and each Seller, by virtue of his, her or its execution and delivery of this Agreement, hereby consents to such replacement Sellers’ Representative. If the appointment of such successor Sellers’ Representative shall dissolve or liquidate or otherwise become unable to fulfill its responsibilities as representative of the Sellers, then the Sellers shall, by “majority vote” within 30 days after such dissolution, liquidation or other event, appoint a successor representative. After any such replacement or appointment of a successor pursuant to this Section 11.01, the successor representative shall provide prompt written notice thereof to Buyer. Until such notice is received by Buyer, the Buyer will be subject entitled to rely on the actions of the previous Sellers’ Representative. Any such successor shall become the “Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue refer to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative .
(e) No bond shall be required of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, and the Sellers’ Representative shall have receive no liability to, and compensation for its services. The Sellers’ Representative shall not be liable to any Seller for any Losses of, any third Person, any Party act done or omitted hereunder as the Sellers’ Representative while acting in good faith and in the exercise of its reasonable business judgment with respect to any Indemnified Party matter arising out of or in connection with the acceptance or administration of its duties hereunder (it being understood that any obligationsact done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Sellers’ Representative shall be entitled to be indemnified by the Sellers, actions on a joint and several basis, for any loss, liability or failure to act expense incurred without gross negligence or willful misconduct on the part of the Sellers’ Representative under with respect to any matter arising out of or in connection with the acceptance or administration of its duties hereunder. The Sellers’ Representative shall be entitled to recover from the Sellers, on a joint and several basis, any out-of-pocket costs and expenses reasonably incurred by the Sellers’ Representative in good faith and in connection with actions taken by the Sellers’ Representative pursuant to this Agreement or otherwise in respect (including the hiring of this Agreement or legal counsel and the transactions contemplated herebyincurring of legal fees and costs). The Sellers’ Representative shall keep reasonably detailed records of the costs and expenses for which it seeks reimbursement as herein provided.
Appears in 1 contract
Sources: Stock and Membership Interest Purchase Agreement (Snyder's-Lance, Inc.)
Sellers’ Representative. (a) Each Seller acknowledges, ratifies and agrees to the appointment of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or (the Sellers’ Representative unless such waiver is in writing signed by the “Sellers’ Representative;
(x”) review in connection with the Preliminary Statement and provide notice to Purchaser under Section 3.6 acquisition of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect Company by ▇▇▇▇▇ pursuant to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination terms of this Agreement. The Sellers’ Representative shall be will act as agent and attorney-in-fact on behalf of each Seller with full power of substitution to act in the only person authorized to take any action so requiredname, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality place and stead of the foregoingSellers with respect to, Purchaser shall be required as applicable, the transfer of the Interests owned by the holders thereof to provide notices ▇▇▇▇▇ in accordance with the terms and provisions of this Agreement, and to act on behalf of each Seller in any litigation or arbitration involving this Agreement, do or refrain from doing all such further acts and things, and execute all such documents as the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process deem necessary or appropriate in connection with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in this Agreement, including, without limitation, the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.power:
(b) The grant of authority provided for in this Section 11.18: (i) is coupled to act for the Sellers with an interest and is being granted, in part, as an inducement regard to the Parties matters pertaining to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters indemnification referred to in this Section 11.18. Each Hatteras Seller hereby authorizes Agreement, including the other Parties hereto power to disregard compromise any notice delivered or other action taken by claim on behalf of Sellers and to transact matters of litigation;
(ii) to execute and deliver any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree certificate, instrument and/or agreement that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party deems necessary or to any Indemnified Party appropriate in connection with the consummation of the transactions contemplated by this Agreement including with respect to the Purchase Price Adjustment in Section 3.3 and the Earn-Out Consideration in Section 3.2;
(iii) to receive funds under this Agreement and give receipts for such funds, it being understood that any obligations, actions or failure to act of such funds received by the Sellers’ Representative under this Agreement on behalf of Sellers shall be distributed by the Sellers’ Representative to the other Sellers in accordance with their respective pre-closing ownership percentages as if such funds were distributed directly to such Sellers;
(iv) to do or otherwise refrain from doing any further act or deed on behalf of the Sellers that the Sellers’ Representative deems necessary or appropriate in respect his sole discretion relating to the subject matter of this Agreement as fully and completely as the Sellers could do if personally present;
(v) to receive service of process in connection with any claims under this Agreement; and
(vi) to exercise any powers or otherwise act on behalf of the Sellers as explicitly provided for in this Agreement. The Sellers’ Representative shall not be responsible to any Seller for any loss or damages any Seller may suffer by the performance of his duties under this Agreement, other than loss or damage arising from willful violation of the law or gross negligence in the performance of his duties under this Agreement. The Sellers shall, to the fullest extent permitted by Law, indemnify and hold harmless the Sellers’ Representative against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees, costs and expenses) (“Sellers’ Representative Losses”) incurred by or asserted against the Sellers’ Representative from and after the date hereof, relating to or arising from or in connection with any claim, demand, suit, action or proceeding by any person arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of the Sellers’ Representative’s duties as contemplated by this Agreement or any transactions contemplated herebyherein. The obligations set forth in this Section 31 shall survive the resignation or removal of the Sellers’ Representative. The Sellers, according to their respective Pre-Closing Ownership Percentages, shall reimburse the Sellers’ Representative for his reasonable expenses incurred on behalf of the Sellers hereunder.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Janel Corp)
Sellers’ Representative. The Sellers’ Representative is hereby approved by the Sellers (aand is to be approved pursuant to the Letter of Transmittal) Each to serve as the representative of the Hatteras Sellers with respect to the matters expressly set forth in this Agreement to be performed by the Sellers’ Representative. Effective as of the Closing, each of the Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints the Sellers’ Representative as the agent, proxy and attorney‑in‑fact for such Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf (a) to consummate the transactions contemplated herein, (b) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (c) to disburse any funds received hereunder to such Seller and each successor appointed in accordance with Section 11.18(c)other Seller, (d) to execute and deliver any certificates representing the Company Group’s equity interests and execution of such further instruments as itsPurchaser shall reasonably request, his or her true (e) to execute and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), deliver on behalf of each such Hatteras SellerSeller any amendment or waiver hereto, as are required(f) to take all other actions to be taken by or on behalf of such Seller in connection herewith, authorized or contemplated (g) to negotiate, settle, compromise and otherwise handle any claims made against the Working Capital Escrow Amount and the Indemnity Escrow Amount made by any indemnified party pursuant this Agreement hereof and (h) to do each and every act and exercise any and all rights which such Seller is, or Sellers collectively are, permitted or required to do or exercise under this Agreement. Each of the other Transaction Documents Sellers shall agree to reimburse the Sellers’ Representative for any fees and expenses incurred by the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement capacity as agent, proxy or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf attorney in fact of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute connection with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated herebyherein. Any action taken by Sellers’ Representative in At the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a PrincipalClosing, the appointment of such successor Sellers’ Representative Purchaser shall be subject deliver to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party an amount equal to this Agreement solely in its role of representative of $1,000,000 (the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as “Sellers’ Representative, Representative Expense Fund”) to be held in trust to cover and reimburse the fees and expenses incurred by the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party its obligations in connection with any obligations, actions or failure to act this Agreement and the transactions contemplated herein. Any balance of the Sellers’ Representative under this Agreement Expense Fund not incurred for such purposes shall be returned to the Sellers on a pro rata basis as soon as reasonably practicable after payment of the Sellers’ Representative the amount due to it from the Sellers’ Representative Expense Fund. A decision, act, consent or otherwise instruction of the Sellers’ Representative hereunder shall constitute a decision, act, consent or instruction of all Sellers and shall be final, binding and conclusive upon each of such Sellers, and all Indemnified Parties may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of each and every Seller. All Indemnified Parties shall be relieved from any liability to any Person for any acts done by them in respect accordance with such decision, act, consent or instruction of this Agreement or the transactions contemplated herebySellers’ Representative.
Appears in 1 contract
Sources: Purchase Agreement (Blackbaud Inc)
Sellers’ Representative. 6.12.1 The Seller and the SPA Sellers (acollectively, the “APA Sellers” and each individually, an “APA Seller”) Each irrevocably appoint (the “Appointment”) ▇▇▇▇▇ as the Representative of the Hatteras Sellers hereby irrevocably constitutesAPA Sellers, designates as the APA Seller’s agent and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with for all purposes set forth in this Agreement (the “Sellers’ Representative”) including the full power of substitution or resubstitution, and authority to (i) perform all such acts the transactions contemplated hereunder to be performed by the APA Sellers under this Agreement; (or to omit from taking ii) disburse any action), funds received by the Seller; (iii) execute and deliver on behalf of each such Hatteras the APA Sellers any amendment or waiver under this Agreement; (iv) execute and deliver on behalf of the APA Sellers any Ancillary Agreements; (v) give and receive notices on behalf of the APA Sellers; (vi) make, dispute, and settle all claims under this Agreement (including in connection with any matter that only relates to one specific APA Seller, as are required, authorized or contemplated by but not all APA Sellers); (vii) receive service of process and/or notice from a Buyer Indemnified Person on behalf of the APA Seller(s) in connection with any indemnification claims under this Agreement; and (viii) interpret the terms of this Agreement and any other related agreement. The Appointment, being coupled with an interest, is irrevocable and will not be revoked by the insolvency, bankruptcy, death, incapacity, dissolution, liquidation or other termination of existence of any APA Seller. All decisions and acts by the Sellers’ Representative within his authority under this Section 6.12.1 shall be binding upon all of the APA Sellers, and no APA Sellers shall have the right to object, dissent, protest or otherwise contest the same. The Sellers’ Representative ▇▇▇▇▇▇ accepts the appointment as Sellers’ Representative pursuant to this Agreement effective on the date hereof, in accordance with the terms set forth in this Section 6.12.
1. The appointment of Sellers’ Representative shall be binding upon each APA Seller and his, her or its respective heirs, executors, successors and permitted assigns.
6.12.2 The Sellers’ Representative shall act on behalf of the APA Sellers with the same effect as if taken by the APA Sellers to institute, make or pursue claims, counterclaims or defenses, enter into, modify, amend, implement or waive any contract, compromise, settle or surrender any disputes or claims or make any other determination or take any other action or assert or compromise any claim in connection with all matters relating to this Agreement, the other Transaction Documents Ancillary Agreements and any of the transactions contemplated hereby and thereby, which includes including the power receipt and authority to:
(i) execute delivery at Closing of certificates and deliver other documents and the giving and receipt of notices by and behalf of the APA Sellers for all documents necessary or desirable purposes under Section 7 and otherwise under and in relation to carry out the intent of this Agreement and the other Ancillary Agreements.
6.12.3 The Sellers’ Representative will have no Liabilities to the APA Sellers for any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve act done or omitted under this Agreement as the named party (Sellers’ Representative while acting in good faith and not in his individuala manner constituting fraud, but solely in his representative capacitygross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. Each APA Seller (other than the Seller) shall, jointly and severally with respect to each other APA Seller (other than the Seller), indemnify and hold and save harmless the Sellers’ Representative from and against any claim for indemnification Losses of any nature whatsoever (including reasonable legal fees) that the Sellers’ Representative may sustain or incur as a result of any action or omission taken by any Purchaser Indemnitee and to resolve such claims as the Sellers’ Representative in its sole discretion deems appropriate;relation to the Appointment and performance of such role, save for any such Losses attributable to the fraud or intentional misconduct of the Sellers’ Representative.
6.12.4 If the Sellers’ Representative becomes unable to perform the Sellers’ Representative’s responsibilities or resigns from such position, the Sellers’ Representative shall select another SPA Seller(s) or principal or beneficiary of a SPA Seller to fill such vacancy and such substituted representative shall: (ivi) give be the Sellers’ Representative for all purposes of this Agreement; and receive any (ii) exercise the rights and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receivepowers of, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution be entitled to the Hatteras Sellers;
(ix) to enforce indemnity, reimbursement and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or other benefits of, the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part Agreement.
6.12.5 The signature of the Sellers’ Representative shall be deemed a waiver to be the signature of such right or interest all APA Sellers, and each APA Seller shall be bound by the terms of any Hatteras Seller or the documents and agreements executed and delivered by Sellers’ Representative unless such waiver on their behalf as though they were actual signatories thereto.
6.12.6 ▇▇▇▇▇ is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice entitled to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated deal exclusively with the Sellers’ Representative providing services on all matters relating to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras APA Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and the other Ancillary Agreements, including under Section 7. Buyer and all other Persons shall be entitled to rely, without any other Transaction Documentinvestigation or inquiry, and to amend or supplement any upon all actions taken by ▇▇▇▇▇▇▇’ Representative as having been taken upon the authority of the foregoingAPA Sellers. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Any action by Sellers’ Representative shall be conclusively deemed to be the only person authorized action of the APA Sellers, and Buyer shall not have any liability or responsibility to take any APA Seller for any action so required, authorized taken in reliance thereon. Buyer will not have any liability or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality obligation arising out of the foregoing, Purchaser shall be required to provide notices to acts or omissions of Sellers’ Representative or any disputes between or among the Hatteras APA Sellers pursuant to this Agreement solely to and Sellers’ Representative. The Buyer may rely entirely on its dealings with, and notices to and from, Sellers’ Representative shall be each Hatteras Seller’s agent for service of process to satisfy any obligations Buyer might have to the APA Sellers under this Agreement, the other Ancillary Agreements or with respect to the contemplated transactions. The APA Sellers, jointly and severally, agree to pay, and to indemnify and hold harmless Buyer and its directors, shareholders, officers, employees, agents, Affiliates, successors and assigns from and against any disputes regarding and all Losses that they may suffer or arising out sustain as a result of this Agreement or the transactions contemplated hereby. Any any claim by any Person that an action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative on behalf of the Hatteras APA Sellers according to the terms of this Section 11.18. Accordinglyis not binding on, or enforceable against, the Parties acknowledge and agree that, in its capacity as APA Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby designates Saada (the “Sellers’ Representative”) to serve as the sole and exclusive representative of such Seller on and after the Hatteras Sellers hereby irrevocably constitutesClosing Date with respect to the matters set forth in this Agreement related to each Seller. Notwithstanding anything to the contrary contained in this Agreement, designates and appoints, authorizes and empowers the Sellers’ Representative shall not have any duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against the Sellers’ Representative.
(b) The Sellers’ Representative is hereby irrevocably appointed as the agent, proxy and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfor each Seller for all purposes specified in this Agreement, with including full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
on each Seller’s behalf, (i) execute and deliver to take all documents actions which the Sellers’ Representative considers necessary or desirable to carry out in connection with the intent defense, pursuit or settlement of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect determinations relating to any claim claims for indemnification by hereunder, including determinations to ▇▇▇, defend, negotiate, settle and compromise any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give for indemnification made by or against, and receive any and all notices other disputes with, Buyer pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
agreements or transactions contemplated hereby, (ixii) to enforce engage and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents employ agents and to refrain from enforcing any right of the Hatteras Sellers or incur such other expenses on each Seller’s behalf as the Sellers’ Representative under shall deem necessary or prudent in connection with the administration of the foregoing, and to deduct the cost and expense thereof from any sums that may become payable to any Seller, (iii) to accept and receive notices to any Seller pursuant to this Agreement, (iv) to take all other actions and exercise all other rights which the Sellers’ Representative considers necessary or appropriate in connection with this Agreement It is acknowledged and agreed that such agency and proxy are coupled with an interest, and are, therefore, irrevocable without the consent of the Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or the Transaction Documents; provided, however, that no such failure to act on the part liquidation of any Seller. All decisions of the Sellers’ Representative shall be deemed a waiver of binding upon each Seller, and no such Seller shall have the right to object, dissent, protest or interest of any Hatteras Seller or otherwise contest the same.
(c) In the event that the Sellers’ Representative unless (or any successor Sellers’ Representative appointed in accordance with this Section 8.12) shall die, become incapacitated or resign, Sellers shall designate a successor Sellers’ Representative.
(d) The Sellers’ Representative is authorized to act on behalf of each Seller notwithstanding any dispute or disagreement among Sellers, and Buyer shall be entitled to rely on any and all actions taken by such waiver Sellers’ Representative without any liability to, or obligation to inquire of, any Seller even if Buyer shall be aware of any actual or potential dispute or disagreement among Sellers. Buyer is in expressly authorized to rely on the genuineness of the signatures of the Sellers’ Representative and, upon receipt of any writing which reasonably appears to have been signed by the Sellers’ Representative;, Buyer may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(xe) review the Preliminary Statement and provide The Sellers’ Representative shall promptly deliver to each Seller any notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered received by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services on behalf of such Seller.
(f) Neither the Sellers’ Representative nor any agent employed by the Sellers’ Representative shall be liable to any Seller relating to the performance of the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss ’s duties under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise, except to the Transaction Documents; and
(xv) perform each such act extent it is finally determined in a court of competent jurisdiction by clear and thing whatsoever convincing evidence that Sellers’ Representative may be the actions taken or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to not taken by the Sellers’ Representative under this Agreement shall survive the Closing Date constituted fraud or termination of this Agreementwere taken or not taken in bad faith. The Sellers’ Representative shall be the only person authorized to take not have any action so requiredliability for acting upon any notice, authorized statement or contemplated certificate believed by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely be genuine and to have been furnished by the appropriate Person and in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party acting or to any Indemnified Party in connection with any obligations, actions or failure refusing to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebygood faith on any matter.
Appears in 1 contract
Sources: Contribution and Purchase Agreement (Care Investment Trust Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers other than ▇▇▇▇▇▇▇ Sr. hereby irrevocably constitutes, designates appoints ▇▇▇▇▇▇▇ Sr. as their "REPRESENTATIVE" and appoints, authorizes and empowers agrees that the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his shall have the authority arising under this Agreement or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, other Transaction Documents to perform all such acts (or to omit from taking any action)which Sellers are party, on behalf of each such Hatteras Sellerof the Sellers other than ▇▇▇▇▇▇▇ Sr. (the "NON-▇▇▇▇▇▇▇ SELLERS"), as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(ia) execute and deliver all documents necessary or desirable Enter into amendments designed to carry out clarify the intent terms of this Agreement and any other or the Transaction DocumentDocuments;
(iib) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve Undertake such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder actions on behalf of the Hatteras Non-▇▇▇▇▇▇▇ Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative that specifically require action by them under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(xc) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto Grant extensions or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute waivers with respect to Buyer's performance of its obligations hereunder or under the matters covered by Section 3.6 hereofTransaction Documents or the Buyer Notes, includingincluding but not limited to, where appropriate, engaging the Neutral Auditorswaivers or subordination of liens to facilitate financing of EOIR and its affiliates post-Closing;
(xid) review Execute and deliver any documents or agreements contemplated by this Agreement or the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereofTransaction Documents, or if Purchaser does not deliver necessary or desirable in connection with the Certificate of 2013 Adjusted PTNI within ninety (90) days after transactions contemplated by this Agreement or the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNITransaction Documents, and agree upon enter into amendments to clarify the terms of such documents and agreements;
(e) Give and receive notices, instructions and other communications under this Agreement or the Transaction Documents and any resolution of any dispute other documents or agreements contemplated hereunder or thereunder;
(f) Negotiate, document and settle all post closing matters between Buyer and such Non-▇▇▇▇▇▇▇ Sellers related to this Agreement or the Transaction Documents;
(g) Take such actions with respect to this Agreement, the matters covered Transaction Documents and the other documents and agreements contemplated by Section 3.7 hereof, including, where appropriate, engaging this Agreement as the Neutral AuditorsRepresentative may deem necessary or appropriate on behalf of such Non-▇▇▇▇▇▇▇ Sellers;
(xiih) pay all costs and expenses incurred Receive service of process in respect of, or charged by, parties unaffiliated connection with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to under this Agreement or the Transaction Documents; and
(xvi) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, To make the election under Section 338(h)(10) pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any Section 4.2. The appointment of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to irrevocable, and the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser Buyer and EOIR may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to herein. If Representative resigns, dies or is otherwise unable to serve as the Representative, the successor Representative shall be designated in writing by the Non-▇▇▇▇▇▇▇ Sellers who held a majority of the EOIR Common Stock immediately prior to the Closing (exclusive of EOIR Common Stock held by ▇▇▇▇▇▇▇ Sr.), and such designation shall be binding upon all of the Non-▇▇▇▇▇▇▇ Sellers. If any Non-▇▇▇▇▇▇▇ Seller should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Representative pursuant to this Section 1.6 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Representative, the Buyer or EOIR shall have received notice of such death, incapacity, termination or other event. All notices and other deliveries required to be made or delivered by the Buyer or EOIR to the Non-▇▇▇▇▇▇▇ Sellers shall be made to the Representative for the benefit of the Non-▇▇▇▇▇▇▇ Sellers and shall discharge in full all notice requirements of the Buyer or EOIR to the Non-▇▇▇▇▇▇▇ Sellers with respect thereto. The Non-▇▇▇▇▇▇▇ Sellers hereby confirm all that the Representative shall do or cause to be done by virtue of his appointment as the Representative of the Non-▇▇▇▇▇▇▇ Sellers. The Representative shall act for the Non-▇▇▇▇▇▇▇ Sellers on all of the matters set forth in this Section 11.18Agreement in the manner the Representative believes to be in the best interest of the Non-▇▇▇▇▇▇▇ Sellers and consistent with his and their obligations under this Agreement, but the Representative shall not be responsible to the Non-▇▇▇▇▇▇▇ Sellers for any loss or damages the Non-▇▇▇▇▇▇▇ Sellers may suffer by the performance by the Representative of his duties under this Agreement, other than loss or damage arising from his willful violation of the law or his duties hereunder. The Representative and his heirs and personal or legal representatives shall be held harmless by the Non-▇▇▇▇▇▇▇ Sellers from, and indemnified against, any loss or damages arising out of or in connection with the performance of his obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of his willful violation of the law. The foregoing indemnity shall survive the resignation or substitution of the Representative. Notwithstanding the foregoing, nothing in this Agreement shall permit nor authorize the Representative to take any action to modify, reduce or alter the amount or timing of payments due under the Promissory Notes. Each Hatteras Seller of the Sellers other than ▇▇▇▇▇▇▇ Sr. shall deliver to the Representative the stock certificate(s) evidencing the EOIR Common Stock held by such Seller, together with a duly executed blank stock power, and hereby authorizes the other Parties hereto Representative to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge deliver such certificates and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party stock power in connection with any obligationsthe Closing under this Agreement. To further effect the foregoing, actions or failure to act each of the Sellers’ Non-▇▇▇▇▇▇▇ Sellers shall execute a power of attorney in the form of EXHIBIT B designating the Representative under (including any replacement Representative) as his or her attorney-in-fact for the purposes set forth in this Agreement Section. The Representative may resign by written notice to the Sellers other than ▇▇▇▇▇▇▇ Sr. and, in such event, or otherwise in respect upon death or incapacity of this Agreement or the transactions contemplated herebyRepresentative a replacement Representative shall be chosen by action of the Sellers (voting pro rata based on principle balance of the Promissory Notes), which new Representative shall be reasonably acceptable to Buyer.
Appears in 1 contract
Sellers’ Representative. (a) Each By the execution and delivery of the Hatteras Sellers this Agreement, each Seller hereby irrevocably constitutesconstitutes and appoints G▇▇▇ ▇. ▇▇▇▇▇ (in such capacity, designates and appoints, authorizes and empowers the “Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative”) as its, his or her the true and lawful agent and attorney-in-fact and agent, of such Seller with full power powers of substitution or resubstitutionto act in the name, place and stead of thereof with respect to perform all such acts (or to omit from taking any action), the performance on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller under the terms and provisions of this Agreement and the other Transaction Documents Ancillary Documents, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Seller, if any, as the Sellers’ Representative will deem necessary or appropriate in connection with any of the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
of the Ancillary Documents, including: (i) agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price; (ii) direct the distribution of the Purchase Price among Sellers; (iii) act for Sellers with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of Sellers any indemnification claim made by or against Sellers, if any; (iv) act for Sellers with respect to all post-Closing matters; (v) terminate, amend or waive any provision of this Agreement; provided, that any such action, if material to the rights and obligations of Sellers in the reasonable judgment of the Sellers’ Representative, will be taken in the same manner with respect to all Sellers unless otherwise agreed by each Seller who is subject to any disparate treatment of a potentially adverse nature; (vi) make employ and obtain the advice of legal counsel, accountants and other professional advisors as the Sellers’ Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Sellers’ Representative and to rely on their advice and counsel; (vii) incur and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viii) receive all or any portion of the Purchase Price and to distribute the same to Sellers according to this Agreement; (ix) sign any releases or other elections documents with respect to and dispute or decisions contemplated by remedy arising under this Agreement or the Ancillary Documents; and (x) do or refrain from doing any other Transaction Document;
(vii) approve waivers, clarifications further act or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder deed on behalf of Sellers which the Hatteras Sellers for distribution Sellers’ Representative deems necessary or appropriate in his or her sole discretion relating to the Hatteras Sellers;
(ix) to enforce and protect the rights subject matter of the Hatteras Sellers under this Agreement as fully and the Transaction Documents completely as any Seller could do if personally present and to refrain from enforcing any right of the Hatteras Sellers acting. The Sellers’ Representative hereby accepts his or her appointment and authorization as the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant appointment of authority provided for in this Section 11.18: (i) is the Sellers’ Representative will be deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable irrevocable, and survive the deathany other Person, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principalincluding Buyer, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include Company and any duly appointed successor Sellers’ Representative. Purchaser other Buyer Indemnified Parties may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the any actions of the Sellers’ Representative as the actions acts of each Hatteras Seller in all matters referred Sellers hereunder or any Ancillary Document to in this Section 11.18which it they are a party. Each Hatteras Buyer Indemnified Party shall be entitled to rely conclusively on the instructions and decisions of the Sellers’ Representative as to (i) the settlement of any claims for indemnification by a Buyer Indemnified Party pursuant to ARTICLE VIII hereof, (ii) any payment instructions provided by the Sellers’ Representative or (iii) any other actions required or permitted to be taken by the Sellers’ Representative hereunder, and no Seller hereby authorizes the other Parties hereto to disregard Indemnified Party shall have any notice delivered or other cause of action against any Buyer Indemnified Party for any action taken by a Buyer Indemnified Party in reliance upon the instructions or decisions of the Sellers’ Representative. No Buyer Indemnified Party shall have any Hatteras liability to Sellers for any allocation or distribution among Sellers by the Sellers’ Representative of payments made to or at the direction of the Sellers’ Representative.
(c) The Sellers’ Representative will act for Sellers on all of the matters set forth in this Agreement in the manner the Sellers’ Representative believes to be in the best interest of Sellers, but the Sellers’ Representative will not be responsible to Sellers for any loss or damage that any Seller may suffer by reason of the performance by the Sellers’ Representative of such Sellers’ Representative’s duties under this Agreement, other than loss or damage arising from fraud, gross negligence or willful misconduct in the performance of the Sellers’ Representative’s duties under this Agreement. Sellers do hereby severally and not jointly agree to indemnify and hold the Sellers’ Representative harmless from and against any and all Losses reasonably incurred or suffered as a result of the performance of the Sellers’ Representative’s duties under this Agreement, except for any such liability arising out of the fraud, gross negligence or willful misconduct of the Sellers’ Representative. The Sellers’ Representative will be entitled to the payment from the Sellers of all his or her expenses incurred as the Sellers’ Representative. No bond shall be required of the Sellers’ Representative.
(d) If the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his or her responsibilities as agent of Sellers, then Sellers shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter (but in any event within two (2) Business Days after such appointment), shall notify Buyer in writing of the identity of such successor. Any such successor shall be appointed by the written consent of Sellers, and any successor so appointed shall become the “Sellers’ Representative” for purposes of this Agreement. A vacancy in the position of Sellers’ Representative may be filled by the vote of Sellers holding a majority in interest of the Escrow Accounts.
(e) All notices or other communications required to be made or delivered by Buyer to a Seller pursuant to this Agreement shall be made to the Sellers’ Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of Buyer to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Sellers’ Representative (except for a notice under Section 9.14(d) of the replacement of the Sellers’ Representative. The Parties acknowledge ).
(f) After the Closing, Buyer shall afford the Sellers’ Representative and agree its Representatives reasonable access (electronically to the greatest extent possible) during business hours and with prior notice to the Buyer, during the period from the date of receipt of a written notice for indemnity until all claims related to such notice are resolved to the books, records and working papers of Buyer and its Affiliates related to such indemnity claim, each of their respective personnel and any other information of Buyer or its Affiliates that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according reasonably requests relating to the terms of this Section 11.18. Accordinglysuch indemnity claims, the Parties acknowledge and agree that, in Buyer and its capacity as Sellers’ Representative, Affiliates shall cooperate with the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party its Representatives in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebytherewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Treasure Finders, Inc.)
Sellers’ Representative. (a) Each By virtue of the Hatteras Sellers hereby irrevocably constitutestheir execution of this Agreement, each Seller designates and appoints, authorizes and empowers appoints the Sellers’ Representative (as such Seller’s agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, and authority to perform all such acts (or to omit from taking any action), act for and on behalf of each such Hatteras Seller, as are required, authorized or Seller in connection with the transactions contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and therebyAgreement, which includes the power and authority toincluding, without limitation:
(i) to negotiate, execute and deliver all documents necessary any amendments or desirable modifications to carry out the intent of this Agreement and any other Transaction DocumentAgreement;
(ii) determine whether the conditions to Closing in Article VII have been satisfiedgive and receive notices and communications;
(iii) serve as to provide written instructions to the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriateEscrow Agent under the Escrow Agreement;
(iv) give and receive any and all notices to accept service of process on behalf of the Sellers pursuant to this Agreement or any other Transaction DocumentSection 8.3;
(v) grant any consent, approval or waiver to authorize and agree to adjustments to the Purchase Price under Section 2.6 and other applicable provisions of this Agreement or any other Transaction Document;Agreement; and
(vi) make all to agree to, negotiate, enter into settlements and compromises of, and comply with Orders of courts or other elections Government Entities and awards of arbitrators, with respect to, any claims by any Purchaser Indemnified Person against any Seller or decisions contemplated by this Agreement any Seller against any Purchaser Indemnified Person, or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend between any Purchaser Indemnitee as described hereinIndemnified Person and any Seller, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser each case relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, Transactions and to amend take all actions that are either (y) necessary or supplement any appropriate in the judgment of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive for the Closing Date accomplishment of the foregoing or termination (z) specifically mandated by the terms of this Agreement. The Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each of the Sellers for all purposes under this Agreement.
(b) In the event of the death or incapacity of the Sellers’ Representative, a successor Sellers’ Representative will be elected promptly by the only person authorized to take any action Sellers whose interests aggregate not less than a majority of the Purchase Price and the Sellers will so requirednotify Purchaser. Each successor Sellers’ Representative has all of the power, authorized or contemplated authority, rights and privileges conferred by this Agreement upon the original Sellers’ Representative, and the term “Sellers’ Representative” as used in this Agreement includes any successor Sellers’ Representative.
(c) A decision, act, consent or instruction of the Sellers’ Representative constitutes a decision of all the Sellers and is final, binding and conclusive upon the Sellers, and Purchaser and any Purchaser Indemnified Person may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Purchaser is hereby relieved from any Liability to any Person for any acts done or omissions by any Hatteras Seller andPurchaser in accordance with such decision, without act, consent or instruction of the Sellers’ Representative. Without limiting the generality of the foregoing, Purchaser shall is entitled to rely, without inquiry, upon any document delivered by the Sellers’ Representative as being genuine and correct and having been duly signed or sent by the Sellers’ Representative.
(d) Each of the Sellers grants unto the Sellers’ Representative full power and authority to do and perform each and every act and thing necessary or desirable to be required done in connection with the matters described above, as fully to provide notices all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Sellers’ Representative may lawfully do or cause to be done by virtue hereof. EACH SELLER ACKNOWLEDGES THAT IT IS HIS, HER OR ITS EXPRESS INTENTION TO HEREBY GRANT A DURABLE POWER OF ATTORNEY UNTO THE SELLERS’ REPRESENTATIVE AND THAT THIS DURABLE POWER OF ATTORNEY IS NOT AFFECTED BY SUBSEQUENT INCAPACITY OF SUCH SELLER. Each of the Hatteras Sellers further acknowledges and agrees that upon execution of this Agreement, any delivery by the Sellers’ Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Sellers’ Representative pursuant to this Agreement solely to Section 5.6, such Person shall be bound by such documents as fully as if such Person had executed and delivered such documents.
(e) In taking any action whatsoever hereunder, the Sellers’ RepresentativeRepresentative shall be protected in relying upon any notice, paper or other document reasonably believed by it to be genuine, or upon any evidence reasonably deemed by it to be sufficient. The Sellers’ Representative may consult with counsel in connection with its duties hereunder and shall be fully protected in any act taken, suffered or permitted by it in good faith or in accordance with the advice of counsel. The Sellers’ Representative shall not be liable to the Sellers for the performance of any act or the failure to act so long as such actions, or failure to act, was not fraudulent. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect entitled to indemnity by the Sellers from and against any disputes regarding and all Losses which may at any time be imposed on, incurred by or asserted against the Sellers’ Representative in any way relating to or arising out of this Agreement Agreement, any other Transaction Document or the transactions contemplated hereby. Any any related agreement or instrument or any action taken or omitted to be taken by the Sellers’ Representative in the name of under or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, thattherewith, unless such Losses resulted solely from the successor Sellers’ Representative is a Principal, bad faith of the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue If an Action or Proceeding with respect to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that which the Sellers’ Representative is a party entitled to this Agreement solely in its role of representative of indemnification hereunder should be commenced or threatened against the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, be entitled to all fees and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party expenses reasonably incurred in connection with any obligations, actions or failure to act the investigation and defense thereof. The foregoing indemnity obligations of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebySellers shall be several only (and not joint).
Appears in 1 contract
Sellers’ Representative. (a) Each of By approving this Agreement and the Hatteras Sellers transactions contemplated hereby, each Seller Party hereby irrevocably constitutes, designates and appoints, authorizes and empowers the appoints Sellers’ Representative (as such Seller Party's representative and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the other Transaction Documents and Ancillary Documents, including, but not limited to, the transactions contemplated hereby and thereby, which includes exercise of the power and authority to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.04;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Ancillary Document;
(vi) make all other elections or decisions contemplated by this Agreement or and any other Transaction Ancillary Document;
(vii) approve waiversengage, clarifications employ or post-Closing modifications appoint any agents or representatives (including attorneys, accountants and consultants) to assist Sellers’ Representative in complying with its duties and obligations;
(viii) pursuant to Section 10.09, waive conditions, covenants and representations and warranties under this Agreement; and
(ix) take all actions necessary or appropriate in the good faith judgment of Sellers’ Representative for the accomplishment of the foregoing.
(b) Buyer and Parent shall be entitled to deal exclusively with Sellers’ Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller Party by Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller Party by Sellers’ Representative, as being fully binding upon such Seller Party. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Seller Parties. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon each such Seller Party. No Seller Party shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 1.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller Party or by operation of Law.
(c) Sellers’ 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 Seller Parties; provided, however, in no event shall Sellers’ Representative resign or be removed without the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative shall be appointed by the vote or written consent of a majority of the Seller Parties. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer and Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received; provided, that until such notice is received, Buyer and Parent shall be entitled to rely on the decisions and actions of the prior Sellers’ Representative.
(d) Sellers’ Representative shall not be liable to the Seller Parties for actions taken pursuant to this Agreement or any other Transaction Ancillary Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution except to the Hatteras 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 Sellers;
(ix) to enforce ’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and protect the rights not jointly, indemnify and hold harmless Sellers’ 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 the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the in connection with its activities as Sellers’ Representative under this Agreement Agreement, in each case as such losses are suffered or the Transaction Documentsincurred; provided, howeverthat in the event it is finally adjudicated that any such loss or any portion thereof was primarily caused by the gross negligence, that no such failure to act on the part fraud, intentional misconduct or bad faith of the Sellers’ Representative, Sellers’ Representative shall be deemed a waiver reimburse Seller Parties the amount of such right indemnified losses attributable to such gross negligence, fraud, intentional misconduct or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good bad faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, each of the Hatteras Sellers hereby irrevocably constitutesconstitutes and appoints Lombard Investments, designates and appoints, authorizes and empowers Inc. as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful agent and attorney-in-fact and agent, (the "Sellers' Representative") of the Sellers with full power of substitution or resubstitutionto act in the name, place and stead of the Sellers with respect to perform all such acts (or the transfer of the Stock owned by the Sellers to omit from taking any action)the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of each the Sellers in any litigation or arbitration involving this Agreement, do or refrain from doing all such Hatteras Sellerfurther acts and things, and execute all such documents as are required, authorized the Sellers' Representative shall deem necessary or appropriate in connection with the transaction contemplated by this Agreement and Agreement, including, without limitation, the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute to act for the Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Sellers and deliver all documents necessary or desirable to carry out the intent transact matters of this Agreement and any other Transaction Documentlitigation;
(ii) determine whether to execute and deliver all ancillary agreements, certificates and documents that the conditions to Closing Sellers' Representative deems necessary or appropriate in Article VII have been satisfiedconnection with the consummation of the transaction contemplated by this Agreement;
(iii) serve as to enter into (pursuant to Section 11.1) one or more amendments to this Agreement or to waive (pursuant to Section 11.2) the named party (not in his individualfailure of Buyer to comply with any obligation, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriatecovenant, agreement or condition contained herein;
(iv) to receive funds and give and receive receipts for funds, including in respect of any and all notices pursuant adjustments to this Agreement or any other Transaction Documentthe Purchase Price;
(v) grant any consent, approval or waiver under this to enter into the Escrow Agreement or any other Transaction Documentand take all actions contemplated to be taken by the Sellers' Representative thereunder;
(vi) make all other elections to do or decisions contemplated by refrain from doing any further act or deed on behalf of the Sellers that the Sellers' Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or any other Transaction Document;as fully and completely as the Sellers could do if personally present; and
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for receive service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising claims under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsAgreement.
(b) The grant appointment of authority provided for in this Section 11.18: (i) is the Sellers' Representative shall be deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to irrevocable, and the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include Buyer and any duly appointed successor Sellers’ Representative. Purchaser other Person may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ ' Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to herein. All notices required to be made or delivered by the Buyer to either of the Sellers shall be made to the Sellers' Representative for the benefit of such Seller and shall discharge in this Section 11.18. Each Hatteras Seller hereby authorizes full all notice requirements of the other Parties hereto Buyer to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representativethe Sellers with respect thereto. The Parties acknowledge and agree Sellers hereby confirm all that the Sellers’ ' Representative is a party shall do or cause to be done by virtue of its appointment as the Sellers' Representative of the Sellers. The Sellers' Representative shall act for the Sellers on all of the matters set forth in this Agreement solely in its role of representative the manner the Sellers' Representative believes to be in the best interest of the Hatteras Sellers according to the terms of and consistent with obligations under this Section 11.18. AccordinglyAgreement, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, but the Sellers’ ' Representative shall have no liability to, and shall not be liable responsible to the Sellers for any Losses ofloss or damages the Sellers may suffer by the performance by the Sellers' Representative of its duties under this Agreement, any third Person, any Party other than loss or to any Indemnified Party damage arising from willful violation of the law by the Sellers' Representative in connection with its duties under this Agreement. In addition, the Sellers (including Lombard) shall severally indemnify the Sellers' Representative and hold the Sellers' Representative harmless (in proportion to such Seller's Fraction) against any obligations, actions loss or failure to act damages arising out of or in connection with the acceptance or administration of the Sellers’ ' Representative's duties hereunder, except any loss or damage arising from willful violation of the law by the Sellers' Representative in connection with its duties under this Agreement or otherwise Agreement.
(c) The Sellers' Representative may be changed by the Sellers from time to time upon not less than thirty (30) days' prior written notice to the Buyer; provided that the Sellers' Representative may not be removed unless holders of a two-thirds interest in respect the Indemnification Escrow Fund agree to such removal and to the identity of this Agreement or the transactions contemplated herebyreplacement Sellers' Representative. Any vacancy in the position of Sellers' Representative may be filled by approval of the holders of a majority in interest of the Indemnification Escrow Fund.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Corinthian Colleges Inc)
Sellers’ Representative. (a) Each By the execution and delivery of the Hatteras Sellers this Agreement, each Seller hereby irrevocably constitutesconstitutes and appoints ▇▇. ▇▇▇▇▇ ▇. Gupta as his, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his her or her its true and lawful agent and attorney-in-fact and agent(the "Sellers' Representative"), with full power of substitution to act in such Seller's name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement and the Escrow Agreement, and to act on such Seller's behalf in any dispute, litigation or resubstitutionarbitration involving this Agreement or the Escrow Agreement, and to perform do or refrain from doing any further act or deed on behalf of such Seller which the Sellers' Representative shall deem necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Escrow Agreement, as fully and completely as such Seller could do if personally present, including the power:
(i) to waive any condition to the obligations of such Seller to consummate the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to execute and deliver all such acts (or ancillary agreements, certificates and documents, and to omit from taking any action)make representations and warranties therein, on behalf of each such Hatteras Seller, as are required, authorized Seller which the Sellers' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents Escrow Agreement; and
(iii) to receive on behalf of, and to distribute (after payment of any unpaid expenses chargeable to Sellers in connection with the transactions contemplated hereby by this Agreement and therebythe Escrow Agreement), which includes all amounts payable to such Seller under the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent terms of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Escrow Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) Each Seller acknowledges and agrees that the Shares set forth opposite such Seller's name on Exhibit A is true and correct. Each Seller further agrees that the calculation of the Buyer Shares, if applicable, and the Common Merger Consideration to be received by such Seller hereunder (as determined in accordance with Section 1.1 and Section 1.8(b)), represents the full amount to which such Seller is entitled in respect of such Seller's Shares. RBC agrees that the calculation of RBC Buyer Shares and the consideration to be received by it hereunder (as determined in accordance with Section 1.1 and Section 1.8(a)), represents the full amount to which RBC is entitled in respect of its Preferred Stock (and accrued but unpaid dividends thereon) and the RBC Warrant.
(c) The grant appointment of authority provided for in this Section 11.18: (i) is the Sellers' Representative shall be deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheldirrevocable, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include and Buyer, its affiliates and any duly appointed successor Sellers’ Representative. Purchaser other Person may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt Sellers' Representative on behalf of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller Sellers in all matters referred relating to in this Section 11.18Agreement and the Escrow Agreement. Each Hatteras Seller hereby authorizes All notices delivered by Buyer or the other Parties hereto Company (following the Closing) to disregard any notice delivered or other action taken by any Hatteras Seller the Sellers' Representative (whether pursuant to this Agreement except for or otherwise) shall constitute notice to Sellers’ Representative. The Parties acknowledge Sellers' Representative shall act for Sellers on all of the matters set forth in this Agreement and agree that the Escrow Agreement in the manner the Sellers’ ' Representative is a party believes to be in the best interest of and equitable to Sellers and consistent with its obligations under this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. AccordinglyAgreement, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, but the Sellers’ ' Representative shall have no liability to, and shall not be liable responsible to Sellers for any Losses of, any third Person, any Party loss or to any Indemnified Party in connection with any obligations, actions damages it or failure to act they may suffer by reason of the performance by the Sellers’ ' Representative of its duties under this Agreement or otherwise in respect the Escrow Agreement, other than loss or damage arising from willful violation of the law. In no case shall Buyer, the Company (following the Closing) or any of Buyer's Affiliates be responsible to the Sellers or the Sellers' Representative for any loss or damages it or they may suffer by reason of the performance by the Sellers' Representative of its duties under this Agreement or the transactions contemplated herebyEscrow Agreement.
(d) Each Seller agrees to indemnify and hold harmless the Sellers' Representative from any Losses incurred by the Sellers' Representative arising from the performance of its duties as the Sellers' Representative hereunder, including the cost of legal counsel retained by the Sellers' Representative on behalf of Sellers, but excluding any loss or damage arising from willful violation of the law.
(e) At the Closing, Buyer shall deduct One Hundred Thousand Dollars ($100,000) from the Purchase Price (the "Sellers' Representative Expenses Advance" and shall pay such amount to the Sellers' Representative. The Sellers' Representative shall use such funds solely in connection with the performance of its duties as the Sellers' Representative hereunder and, upon the eighteen-month anniversary of the Closing (or such earlier date at the Sellers' Representative's discretion), shall pay any remaining amount to the Sellers and the holders of Company Stock Options, pro rata according to their ownership of Shares (assuming exercise of each Company Stock Option whether or not then vested) as of immediately prior to the Closing (without giving effect to any Rollover Shares exchanged pursuant to Section 1.1).
(f) All actions, decisions and instructions of the Sellers' Representative taken, made or given pursuant to the authority granted to the Sellers' Representative pursuant to this Section 1.15 shall be conclusive and binding upon each Seller and each holder of Company Stock Options, and no Seller or optionholder shall have the right to object, dissent, protest or otherwise contest the same.
(g) The provisions of this Section 1.15 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by Sellers to the Sellers' Representative and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Seller.
Appears in 1 contract
Sellers’ Representative. (a) Each By virtue of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers execution of this Agreement by the Sellers’ Representative , each of the Sellers shall have irrevocably constituted and appointed, upon the Closing, ▇▇▇▇▇ ▇▇▇▇▇ (and each successor appointed in accordance with Section 11.18(c)by its execution of this Agreement as Sellers’ Representative, ▇▇▇▇▇ ▇▇▇▇▇ hereby accepts its appointment) as itsthe true, his or her true exclusive and lawful agent and attorney-in-fact (the “Sellers’ Representative”) of the Sellers receiving consideration hereunder to act in the name, place and agentstead of the Sellers in connection with the Transactions, in accordance with full power the terms and provisions of substitution or resubstitutionthis Agreement, and to perform all such acts (or to omit from taking any action), act on behalf of each the Sellers in any Proceeding involving this Agreement, to do or refrain from doing all such Hatteras Sellerfurther acts and things, and to execute all such documents as are requiredthe Sellers’ Representative shall deem necessary or appropriate in connection with the Transactions, authorized or contemplated by this Agreement and including the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Sellers’ Representative deems necessary or desirable appropriate in connection with the consummation of the Transactions, in performing his or her duties pursuant to carry out the intent of this Agreement and any other Transaction DocumentAgreement;
(ii) determine to execute and deliver all amendments and waivers to this Agreement and any and all other documents that the Sellers’ Representative deems necessary, desirable or appropriate, whether prior to, at or after the conditions to Closing in Article VII have been satisfiedClosing;
(iii) serve as to receive funds for the named party (not payment of expenses of the Sellers and apply such funds in his individual, but solely in his representative capacity) with respect to any claim payment for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriateexpenses;
(iv) give and receive to do or refrain from doing any and all notices pursuant further act or deed on behalf of the Sellers that the Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or any other Transaction Document;as fully and completely as the Sellers could do if personally present; and
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for receive service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising claims under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsAgreement.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative may be removed or replaced only upon delivery of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable written notice to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed Buyer by the remaining Principals; provided, however, that, unless Sellers holding at least a majority of the successor Sellers’ Representative is a Principal, the appointment outstanding Company Securities as of such successor Sellers’ Representative shall be subject immediately prior to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed)Closing. Any references in this Agreement to Sellers’ Representative shall be deemed to include Parent and ▇▇▇▇▇ and any duly appointed successor Sellers’ Representative. Purchaser other Person may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to herein. The Sellers’ Representative shall act for the Sellers on all of the matters set forth in this Section 11.18. Each Hatteras Agreement in the manner the Sellers’ Representative believes to be in the best interest of the Sellers and consistent with the obligations under this Agreement, but the Sellers’ Representative shall not be responsible to the Sellers for any Damages the Sellers may suffer by the performance of its duties under this Agreement, other than Damages arising from willful violation of the Applicable Law or gross negligence in the performance of its duties under this Agreement.
(c) In the performance of its duties hereunder, the Sellers’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Seller hereby authorizes the other Parties hereto or any party hereunder and (ii) assume that any Person purporting to disregard give any notice delivered in accordance with the provisions hereof has been duly authorized to do so.
(d) The Sellers’ Representative shall use the Sellers’ Representative Expense Fund to pay any expenses incurred by the Sellers’ Representative in fulfilling its obligations hereunder and shall distribute any remaining balance of the Sellers’ Representative Expense Fund to the Sellers upon completion by the Sellers’ Representative of its duties in connection herewith. Any such distributions |US-DOCS\159043691.20|| from the Sellers’ Representative Expense Fund shall be paid to the Sellers with equal priority and pro rata based on each such Seller’s Pro Rata Share of the Sellers’ Representative Expense Fund. The Sellers will not receive any interest or earnings on the Sellers’ Representative Expense Fund and irrevocably transfer and assign to the Sellers’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Sellers’ Representative will not be liable for any loss of principal of the Sellers’ Representative Expense Fund other action taken than as a result of its gross negligence or willful misconduct. For tax purposes, the Sellers’ Representative Expense Fund will be treated as having been received and voluntarily set aside by any Hatteras Seller the Sellers at the time of Closing.
(e) The Seller’s Representative will incur no liability to the Sellers in connection with its services pursuant to this Agreement and any related agreements except for to the extent resulting from its gross negligence or willful misconduct. The Sellers’ RepresentativeRepresentative shall not be liable to the Sellers for any action or omission pursuant to the advice of counsel. The Parties acknowledge and agree that Sellers shall indemnify the Sellers’ Representative is a party to against any reasonable, documented, and out-of-pocket losses, liabilities and expenses arising out of or in connection with this Agreement solely and any related agreements and in its role of representative the Sellers’ Representative capacity as such (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Sellers’ Representative Expense Fund and (ii) any other funds that become payable to the Sellers under this Agreement at such time as such amounts would otherwise be distributable to the Sellers; provided, that while the Sellers’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred (consistent with the allocation in the immediately preceding sentence), nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, and shall the Sellers set forth elsewhere in this Agreement are not intended to be liable for any Losses ofapplicable to the indemnities provided to the Sellers’ Representative hereunder. The foregoing indemnities will survive the Closing, any third Person, any Party the resignation or to any Indemnified Party in connection with any obligations, actions or failure to act removal of the Sellers’ Representative under this Agreement or otherwise in respect the termination of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers By executing this Agreement each Seller and each Optionholder hereby irrevocably constitutesappoints Trinity Private Equity Group, designates and appoints, authorizes and empowers the Sellers’ Representative LLC (and each successor appointed in accordance with Section 11.18(c)Trinity Private Equity Group, LLC hereby consents to such appointment) as itsagent, his or her true proxy and lawful attorney-in-fact for each Seller and agenteach Optionholder for all purposes of this Agreement and the Additional Agreements, with including the full power and authority on each such Seller’s and Optionholder’s behalf to (i) to give and receive notices and communications to or by the Purchaser for any purpose under this Agreement and the Additional Agreements, (ii) to agree to, negotiate, enter into settlements and compromises of substitution and demand mediation and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article XII, the Post-Closing Adjustment, or resubstitutionother disputes arising under or related to this Agreement or the Additional Agreements, (iii) to perform all such acts enter into and deliver the Escrow Share Agreement and Cash Escrow Agreement on behalf of each of the Sellers and Optionholders and to disburse any funds or shares of Purchaser Common Stock received hereunder or pursuant to the Escrow Share Agreement or the Cash Escrow Agreement, as applicable, (iv) to authorize or object to omit from taking delivery to the Purchaser of the Share Escrow Fund, Cash Escrow Fund, or any action)portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Share Agreement or the Cash Escrow Agreement, as applicable, (v) to act on behalf of Sellers and Optionholders in accordance with the provisions of the Agreement and the Additional Agreements, the securities described herein and any other document or instrument executed in connection with the Agreement and the Transactions, (vi) to endorse and deliver any certificates or instruments of assignment as Purchaser shall reasonably request; (vii) to execute and deliver on behalf of each such Hatteras SellerSeller and Optionholder any amendment, as are requiredwaiver, authorized or contemplated by this Agreement ancillary agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers Seller or Optionholder that the Sellers’ Representative deems necessary or appropriate; and (viii) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing and to do each and every act and exercise any and all rights which the Sellers and/or Optionholders collectively are permitted or required to do or exercise under this Agreement or Agreement. Purchaser is expressly authorized to rely on the Transaction Documents; genuineness of the signature of Sellers’ Representative and, upon receipt of any writing which reasonably appears to have been signed by Sellers’ Representative, Purchaser may act in good faith upon the same without any further duty of inquiry as to the genuineness of the writing.
(b) Such agency may be changed by the Sellers and Optionholders from time to time upon no less than twenty (20) days prior written notice to the Purchaser, provided, however, that no the Sellers’ Representative may not be removed unless holders of at least 51% of all of the Transferred Equity Interests on an as-if converted basis outstanding immediately prior to the Transactions agrees to such failure removal. Any vacancy in the position of Sellers’ Representative may be filled by approval of the holders of at least 51% of all of the Transferred Equity Interests on an as-if converted basis outstanding immediately prior to act on the part Transactions. Any removal or change of the Sellers’ Representative shall not be deemed a waiver effective until written notice is delivered to Purchaser. No bond shall be required of such right or interest of any Hatteras Seller or the Sellers’ Representative, and the Sellers’ Representative unless shall not receive any compensation for his services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from the Sellers and Optionholders.
(c) A decision, act, consent or instruction of the Sellers’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Sellers and Optionholders of the Acquired Companies and shall be final, binding and conclusive upon each of the Sellers and Optionholders. In connection with this Agreement, the Escrow Share Agreement, the Cash Escrow Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Sellers’ Representative hereunder (i) the Sellers’ Representative shall incur no responsibility whatsoever to any Sellers by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with the Escrow Share Agreement, the Cash Escrow Agreement, or any such waiver is other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Sellers’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in writing signed the matter at issue, and any error in judgment or other act or omission of the Sellers’ Representative pursuant to such advice shall in no event subject the Sellers’ Representative to liability to any Sellers or Optionholders. Each Seller (but not any Optionholder) shall severally (in accordance with their ownership percentages in the Acquired Companies as set forth on Schedule 13.14(c)), and not jointly, indemnify the Sellers’ Representative, against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever) (“Sellers’ Representative Losses”), arising out of or in connection with any actions taken or omitted to be taken by the Sellers’ Representative;
Representative pursuant to the terms of this Agreement, the Escrow Share Agreement, or the Cash Escrow Agreement (x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of including any items of disagreement related thereto claim, investigation, challenge, action or approval proceeding or in connection with any appeal thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect relating to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate acts or omissions of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to hereunder, or under the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described hereinEscrow Share Agreement, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Cash Escrow Agreement or the Transaction Documents; and
(xv) perform otherwise), in each case as such act and thing whatsoever that Sellers’ Representative may be Loss is incurred or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingsuffered. All of the indemnities, immunities and powers granted If not paid directly to the Sellers’ Representative under this Agreement shall survive by the Closing Date or termination of this Agreement. The Sellers, any such Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, Loss may be exercised recovered by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party from the Share Escrow Fund or Cash Escrow Fund otherwise distributable to this Agreement solely in its role of representative of the Hatteras Sellers according pursuant to the terms hereof and the Escrow Share Agreement and the Cash Escrow Agreement at the time of this Section 11.18. Accordingly, the Parties acknowledge and agree that, distribution in its capacity as Sellers’ Representative, accordance with written instructions delivered by the Sellers’ Representative shall have no liability toto the Escrow Share Agent or Cash Escrow Agent, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of as applicable; provided that while this section allows the Sellers’ Representative under to be paid from the Share Escrow Fund and the Cash Escrow Fund, this Agreement does not relieve the Sellers from their obligation to promptly pay such Sellers’ Representative Losses as they are suffered or otherwise in respect of this Agreement incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or the transactions contemplated herebyotherwise.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RumbleOn, Inc.)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsauthorize the Sellers’ Representative to take, his or her true and lawful attorney-in-fact consent to the Sellers’ Representative taking, the following actions for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each Sellers following the Closing: (i) to give and receive notices and communications; (ii) to take any and all actions relating to claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder; (iii) to authorize delivery to Buyer of a portion of the Escrow Fund in satisfaction of claims by the Indemnitees; (iv) to object to such Hatteras Sellerdeliveries; (v) to agree to, as are requirednegotiate, authorized or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (vi) to take all actions on behalf of Sellers in connection with the working capital adjustment contemplated by in Section 1.4; (vii) to take all other actions contemplated for the Sellers’ Representative in this Agreement and in the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
Escrow Agreement; (iviii) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification documents and agreements contemplated by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(vincluding the Escrow Agreement); (ix) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) to make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, documents and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or agreements contemplated by this Agreement by any Hatteras Seller and(including the Escrow Agreement); (x) to amend, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding modify or arising out waive provisions of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative 6.2 and Section 6.3) or any of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto related agreements to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that which the Sellers’ Representative is a party party; (xi) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Sellers’ Representative in complying with the Sellers’ Representative’s duties and obligations; and (xii) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all such matters relating to this Agreement solely in its role (including Article VI) and shall be entitled to rely conclusively (without further evidence of representative any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as being fully binding upon such holder. Notices or communications to or from the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party constitute notice to or to any Indemnified Party in connection with any obligations, actions from each Seller. Any decision or failure to act of action by the Sellers’ Representative under this Agreement hereunder, including any agreement between the Sellers’ Representative and Buyer relating to the defense, payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such holder. No Seller shall have the right to object to, dissent from, protest or otherwise in respect of this Agreement or contest the transactions contemplated herebysame.
Appears in 1 contract
Sellers’ Representative. (a) Each of At the Hatteras Sellers hereby irrevocably constitutesClosing, designates Gryphon Partners III, L.P. shall be constituted and appoints, authorizes and empowers appointed as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsRepresentative. For purposes of this Agreement, his or her the term “Sellers’ Representative” shall mean the representative, true and lawful agent, proxy and attorney in fact of the Company Stockholders for all purposes of this Agreement and the Escrow Agreement, with full power and authority on such Company Stockholder’s behalf (i) to consummate the transactions contemplated herein, (ii) to pay such Company Stockholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to such Company Stockholder and each other Company Stockholder and to holdback from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Stock and execution of such further instruments as Purchaser shall reasonably request, (v) to execute and deliver on behalf of such Company Stockholder all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of such Company Stockholder in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding Estimated Working Capital and any adjustment pursuant to Section 2.10, (viii) to waive any condition to the obligation of the Company Stockholders to consummate the transactions contemplated herein, (ix) to give and receive notices on behalf of the Company Stockholders and (x) to do each and every act and exercise any and all rights which such Company Stockholder is, or the Company Stockholders collectively are, permitted or required to do or exercise under this Agreement. The Company Stockholders, by approving the principal terms of the Merger and/or accepting the consideration payable to them hereunder, irrevocably grant unto said attorney-in-fact and agent, with agent full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) do and perform each such and every act and thing whatsoever that Sellers’ Representative may be necessary or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby By executing this Agreement, each Selling Party irrevocably constitutes, designates and appoints, authorizes and empowers the appoints Sellers’ Representative (as such Selling Party’s representative and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Person with respect to this Agreement and the other Transaction Documents Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the transactions contemplated hereby and therebyEscrow Agreement, which includes including the exercise of the power and authority to:
: (i) give and receive notices and communications; (ii) authorize delivery to Buyer of cash from the Indemnity Escrow Account in satisfaction of claims for indemnification made by Buyer pursuant to Section 8.03 or Article XI; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer pursuant to Section 8.03 or Article XI; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Section 8.03 or Article XI; (v) authorize delivery to Buyer of cash from the Indemnity Escrow Account in satisfaction of any negative Purchase Price Adjustment pursuant to Section 2.04 or any adjustment to the Final Purchase Price payable to Buyer pursuant to Section 2.10 otherwise agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described Section 2.04 or Section 2.10; (vi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
Document (ii) determine whether including the conditions to Closing in Article VII have been satisfied;
Escrow Agreement); (iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vivii) make all other elections or decisions contemplated by this Agreement or and any other Transaction Document;Document (including the Escrow Agreement); (viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Sellers’ Representative in complying with its duties and obligations; (ix) to receive funds, make payments of funds, and give receipts for funds on behalf of the Selling Parties in connection with this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby and (x) take all actions necessary or appropriate in the good faith judgment of Sellers’ Representative for the accomplishment of the foregoing.
(viib) approve waiversBuyer shall be entitled to deal exclusively with Sellers’ Representative on all matters relating to this Agreement (including Section 8.03 and Article XI) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Selling Party by Sellers’ Representative, clarifications and on any other action taken or post-Closing modifications purported to be taken on behalf of any Selling Party by Sellers’ Representative, as being fully binding upon such Person. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Selling Parties. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Buyer relating to the defense, payment or settlement of any claims for indemnification or otherwise as provided hereunder, shall constitute a decision or action of all Selling Parties and shall be final, binding and conclusive upon each such Selling Party. No Selling Party shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Selling Party, or by operation of Law, whether by death or other event.
(c) Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the unanimous vote or written consent of the Selling Parties; provided, however, in no event shall Sellers’ Representative resign or be removed without the Selling Parties having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative shall be appointed by the unanimous vote or written consent of the Selling Parties. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Buyer; provided, that until such notice is received, Buyer and the Company shall be entitled to rely on the decisions and actions of the prior Sellers’ Representative as described in Section 12.01(a) and Section 12.01(b).
(d) Sellers’ Representative shall not be liable to the Selling Parties for actions taken pursuant to this Agreement or any other Transaction Document;
(viii) receivethe Escrow Agreement, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution except to the Hatteras 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 Sellers;
(ix) to enforce ’ Representative shall be conclusive evidence of good faith). Seller shall indemnify and protect the rights hold harmless Sellers’ 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 the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the in connection with its activities as Sellers’ Representative under this Agreement and the Escrow Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or the Transaction Documentsincurred; provided, howeverthat in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, that no such failure to act on the part fraud, intentional misconduct or bad faith of the Sellers’ Representative, Sellers’ Representative shall be deemed a waiver reimburse the Selling Parties the amount of such right indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good bad faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative Losses shall be the only person authorized to take any action so required, authorized or contemplated satisfied by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers (other than the ESOP) hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)' Representative") as itshis, his her or her true its agent, proxy and lawful attorney-in-fact for all purposes under this Agreement, and agenteach such Seller authorizes the Sellers' Representative to do any and all of the following for such Seller and in such Seller's name and stead: (i) to execute, with full power of substitution acknowledge, as appropriate, and deliver to the Buyer any certificate, document or resubstitutionagreement referred to herein or contemplated hereby (other than the Restricted Shares Agreement to which such Seller is a party, if any); (ii) to perform all such acts accept, receipt for and deposit any funds or other amounts owing to the Sellers (or other than the ESOP) hereunder; (iii) to omit from taking any action)represent, negotiate on behalf of each such Hatteras Sellerand bind the Sellers (other than the ESOP) in connection with the determination of the purchase price adjustment amount pursuant to Section 1.4, as are required, authorized any negotiations or contemplated by this Agreement and agreements with the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) Buyer with respect to the purchase price adjustment under Section 1.4, and any claim for indemnification by any Purchaser Indemnitee and presentation to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
or discussions with the Independent Accountant with respect thereto; (iv) give to pay the purchase price adjustment amount, if any, due from the Sellers (other than the ESOP) to the Buyer in accordance with Section 1.4, subject to the individual Sellers' prior payment or prompt reimbursement of such amount to the Sellers' Representative; (v) to represent, negotiate on behalf of and receive bind the Sellers (other than the ESOP) in connection with the determination of any indemnification claims under this Agreement or any of the Ancillary Agreements or any negotiations or agreements with the Buyer with respect to indemnification, and all notices pursuant to make any indemnification payments under this Agreement or any of the Ancillary Agreements on behalf of the Sellers (other than the ESOP); (vi) on behalf of the Sellers (other than the ESOP), to execute, acknowledge, as appropriate, and deliver such modifications and amendments to this Agreement or any of the Ancillary Agreements as the Sellers' Representative shall deem advisable in his discretion; and (vii) to do any and all other Transaction Document;
acts and things on behalf of the Sellers (vother than the ESOP) grant any consent, approval or waiver under in connection with this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or of the Ancillary Agreements as the Sellers' Representative shall deem advisable in his discretion. The agency created hereby shall be deemed irrevocable and coupled with an interest. The Buyer shall be entitled to rely upon the powers granted herein with respect to any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications matter relating to this Agreement or any other Transaction Document;
(viii) receiveof the Ancillary Agreements, and enforce any question which may arise concerning the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers power or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part authority of the Sellers’ ' Representative to act for each Seller (other than the ESOP) shall be deemed a waiver interpreted and construed in favor of such right or interest the authority of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ ' Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ ' Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party Seller with respect to any actions taken (or not taken) by the Sellers' Representative in connection with the performance of his duties under this Agreement and any obligationsother document or agreement referred to herein or contemplated hereby, except to the extent that such actions were taken (or failure to act not taken) as a result of the intentional misconduct of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edo Corp)
Sellers’ Representative. (a) Each Seller exclusively and irrevocably appoints ▇▇ ▇▇▇ as its representative with full authority and power without limitation to execute all instruments (other than any Assignment or any certificate required pursuant to Section 4.1(c)), to perform all covenants and obligations, to grant such waivers and consents on behalf of such Seller under this Agreement, to exercise all rights on such Seller’s behalf in connection with the Hatteras Sellers hereby performance of this Agreement and to amend this Agreement except to the extent such amendment would decrease the Purchase Price or adversely and disproportionately affect such Seller without such Seller’s consent, in each case, as Seller’s Representative in its sole discretion shall deem advisable, both prior to and after Closing.
(b) ▇▇ ▇▇▇ in its capacity as representative appointed under Section 15.7(a) is “Seller’s Representative.”
(c) Without in any way limiting the authority and power set forth in Sections 15.7(a), each Seller irrevocably constitutes, designates appoints the Seller’s Representative the agent and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact of such Seller for the purposes of acting in the name and agent, with full power stead of substitution such Seller in: (i) giving and receiving all notices permitted or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated required by this Agreement and acting on behalf of such Sellers for all purposes under this Agreement; (ii) dealing with Buyer in connection with any and all adjustments to the other Transaction Documents Purchase Price under this Agreement (including negotiating and settling any dispute regarding any such adjustments on behalf of such Sellers); (iii) acting on such Seller’s behalf under any covenant, agreement or provision of this Agreement; (iv) agreeing with Buyer as to any amendments to this Agreement or waivers of any terms of this Agreement which Seller’s Representative may reasonably deem necessary or advisable, including the extension of time in which to consummate the transactions contemplated hereby by this Agreement, and thereby, which includes the power and authority to:
waiver of any closing conditions; (iv) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement employing legal counsel; (vi) paying any legal and any other Transaction Document;
fees, costs and expenses incurred in connection with the transactions contemplated by this Agreement; (iivii) determine granting any consent or approval on behalf of such Seller under this Agreement; (viii) determining whether the conditions to Closing in Article VII V have been satisfied;satisfied and supervising the Closing, including waiving any such condition if Seller’s Representative, in its sole discretion, determine that such waiver is appropriate; (ix) taking any action that may be necessary or desirable, as determined by Seller’s Representative in its sole discretion, in connection with the termination of this Agreement in accordance with Article VII; (x) serving as payment agent for Sellers and otherwise making the determinations referenced by Section 2.4 in accordance with Section 2.4, including directing the timing, making and manner of payment of the Purchase Price (as adjusted pursuant to this Agreement) hereunder equitably among the Sellers in accordance with this Agreement as contemplated by Section 2.4; (xi) dealing with Buyer in connection with the determination, dispute, negotiation and settlement of any Title Defects or Environmental Defects; and (xii) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which Seller’s Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement, as fully as if such Sellers were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other parties to this Agreement, and in consideration of those interests and for the purpose of completing the transactions contemplated hereby, this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by the Sellers or by operation of Law, whether by the incapacity of any of the Sellers or by the occurrence of any other event. As the representative of the Sellers, Seller’s Representative shall act as the agent for all such Persons, shall have authority to bind each such Person in accordance with this Agreement, and Buyer shall be fully protected in relying conclusively without any investigation upon any notices, instruction, dealings, and actions of Seller’s Representative within the scope of this Section 15.7 and the power of attorney contained herein.
(iiid) serve Each Seller exclusively and irrevocably appoints the Seller’s Representative, acting jointly, with full authority and power to execute the Escrow Agreement, to perform all covenants and obligations under the Escrow Agreement, to execute joint written instructions to the Escrow Agent under the Escrow Agreement, to grant waivers and consents under the Escrow Agreement, to exercise all rights in connection with the performance of the Escrow Agreement and to amend the Escrow Agreement, in each case, as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Seller’s Representative in its sole discretion deems appropriate;shall deem advisable, during the term of the Escrow Agreement. Each Seller agrees that Buyer and Escrow Agent shall be entitled to rely on this granting of power of attorney in all respects.
(ive) give Notwithstanding anything to the contrary herein, the Seller’s Representative shall not owe any fiduciary duties to the Sellers and receive shall not have any Liability of any kind whatsoever to the Sellers arising hereunder or in any way related to any of the transactions contemplated hereby, including for any action taken, or omission made, by Seller’s Representative while acting in good faith in the absence of bad faith or willful misconduct and each Seller hereby irrevocably and unconditionally forever releases Seller’s Representative from any and all notices pursuant Liability of any kind whatsoever arising hereunder or in any way related to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers transactions contemplated hereby, including for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers action taken, or the Sellers’ Representative under this Agreement or the Transaction Documents; providedomission made, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Seller’s Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, while acting in good faith, including except (Aand only to the extent) of bad faith or willful misconduct by Seller’s Representative. The Seller’s Representative may, in all matters arising in connection with this Agreement, rely on the advice of counsel and the Seller’s Representative shall not be liable to resolve the Sellers for anything done, omitted, or suffered in good faith based on such advice in the absence of bad faith or willful misconduct by the Seller’s Representative. The Seller’s Representative undertakes to perform such duties herein and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Seller’s Representative.
(f) Buyer, the Escrow Agent and all other Persons shall have the right to rely upon all actions taken or omitted to be taken by Seller’s Representative pursuant to this Agreement. Notwithstanding anything herein to the contrary, Sellers do hereby agree that Buyer Indemnified Parties shall have no Liability to any Seller or Seller’s Representative as a disputed claim for indemnification asserted result of any action or inaction by Seller’s Representative in the performance of this Agreement or any such action or inaction of any Buyer Indemnified Party pursuant at the request or instruction of Seller’s Representative related to Article Xthis Agreement, and Sellers do hereby agree to defend, indemnify, hold harmless and forever release Buyer Indemnified Parties from any such Liability, including for the avoidance of doubt, any distribution of any portion of the Adjusted Purchase Price paid to the Seller’s Representative.
(g) The authorizations of the Seller’s Representative under this Section 15.7 shall be effective until its rights and obligations under this Agreement terminate by virtue of the termination of all obligations of each Seller under this Agreement.
(h) Without in any way limiting the authority and power granted to the Seller’s Representative hereunder, the Seller’s Representative is expressly authorized to withhold (and otherwise make provision for) any amounts that they determine in their sole discretion as being sufficient to (i) satisfy any anticipated or potential downward adjustments to the Purchase Price, it being understood that any amounts so withheld for such purpose that are remaining after the Final Payment Date will be distributed to the Sellers in accordance with Section 2.4 promptly after the Final Payment Date, and (Bii) to defend satisfy any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel anticipated or potential liabilities or other advisors obligations potentially arising hereunder affecting any Sellers in furtherance the group of that defense;
(xiv) pursue or resolve any claim under Article X Sellers which it represents hereunder, if and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever extent that Sellers’ Seller’s Representative may be or is required to do, or which Sellers’ Representative determines in its sole discretion determines acting reasonably and in good faith that such is desirable to doin the collective best interest of Sellers, pursuant to or to carry out the intent of this Agreement and it being understood that any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted such remaining amounts so withheld will be distributed to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon 2.4 promptly after Seller’s Representative determines in its sole discretion acting reasonably and in good faith that such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for distribution is in this Section 11.18: (i) is coupled with an the collective best interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras The Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ 's Representative may be or is required changed from time to dotime upon not less than 5 days' prior written notice from the Seller or, or which Sellers’ Representative in its sole discretion determines is desirable to doif the Seller has been liquidated, pursuant to or to carry out the intent of this Agreement and from any other Transaction Documentthree Parent Shareholders, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive Purchaser and the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsEscrow Agent.
(b) The grant Escrow Agent shall, upon receipt from time to time of authority provided for written instructions executed by the Seller's Representative (accompanied by copies of appropriate invoices), distribute (in this accordance with Section 11.18: (i5(b) is coupled with an interest hereof and is being granted, in part, as an inducement without deductions or set-offs of any nature) to the Parties Seller's Representative (or to enter into this Agreement such other Persons specified in such written instructions), out of the Escrow Fund, Escrow Shares and/or cash equal in value to all out-of-pocket costs and will be irrevocable expenses (including reasonable attorneys' fees and survive the death, incompetency, bankruptcy or liquidation disbursements and reasonable travel costs of any Hatteras Seller witnesses and will be binding on any successor thereto; and (iiother Persons) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed incurred by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a PrincipalSeller's Representative, the appointment Seller and/or the Parent Shareholders in connection with this Agreement, including all costs and expenses incurred by the Seller's Representative and/or the Parent Shareholders in connection with the performance of the Seller's Representative's duties hereunder and/or in connection with any dispute between the Purchaser and the Seller's Representative with respect to any indemnification claim made under Article V of the Purchase Agreement (all such successor Sellers’ Representative shall be subject out-of-pocket costs and expenses being referred to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ as "Seller's Representative Expenses"). "Seller's Representative Expenses" shall not be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative costs or expenses that constitute "Defense Costs" under Section 11.18(c), continue 8(c) hereof. No consent or approval of the Purchaser shall be required with respect to rely, without inquiry, upon any distribution to be made by the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller Escrow Agent pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby8(b).
Appears in 1 contract
Sources: Escrow Agreement (Tulpan Yossi)
Sellers’ Representative. (a) Each By virtue of the Hatteras Sellers hereby irrevocably constitutesapproval of this Agreement pursuant to the Organizational Documents and the DGCL, designates and appoints, authorizes and empowers the Sellers’ Representative (is hereby appointed as the sole and each successor appointed in accordance with Section 11.18(c)) as itsexclusive agent, his or her true proxy and lawful attorney-in-fact for each Seller for all purposes of this Agreement, the Ancillary Agreements and agentthe Contemplated Transactions, with full and exclusive power and authority to act on such Seller’s behalf. The appointment of substitution the Sellers’ Representative hereunder is coupled with an interest, shall be irrevocable and shall not be affected by the death, incapacity, insolvency, bankruptcy, illness or resubstitutionother inability to act of any Seller. Without limiting the generality of the foregoing, to perform all such acts (or to omit from taking any action)the Sellers’ Representative is hereby authorized, on behalf of each such Hatteras Sellerthe Sellers, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) in connection with the Closing, execute and deliver receive all documents documents, instruments, certificates, statements and agreements on behalf of and in the name of each Seller necessary or desirable to carry out effectuate the intent of this Agreement Closing and any other Transaction Documentconsummate the Contemplated Transactions;
(ii) determine whether receive and give all notices and service of process, make all filings, enter into all Contractual Obligations, make all decisions, bring, prosecute, defend, settle, compromise or otherwise resolve all claims, disputes and Actions, authorize payments in respect of any such claims, disputes or Actions, and take all other actions, in each case, with respect to the conditions matters set forth in Section 2.12, ARTICLE IX or ARTICLE X or any other Actions directly or indirectly arising out of or relating to Closing in Article VII have been satisfiedthis Agreement, any Ancillary Agreement or the Contemplated Transactions;
(iii) serve as receive and give all notices, make all decisions and take all other actions on behalf of the named party (not Sellers in his individualconnection with the escrow account established pursuant to the Escrow Agreement, but solely including giving any instructions or authorizations to the Escrow Agent to pay from such escrow account any amounts owed by the Sellers pursuant to this Agreement or the Escrow Agreement or otherwise in his representative capacity) connection with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriatethe Contemplated Transactions;
(iv) give collect, hold and receive deliver to the Buyer the Letters of Transmittal, certificates representing Common Stock and other documents or instruments required to be delivered by any Seller to the Buyer at the Closing;
(v) collect, hold and all notices pursuant deliver to the Sellers any amount of funds payable by the Buyer Parties or their Affiliates to, or for the benefit of, the Sellers hereunder or under any Ancillary Agreement, including the aggregate Closing Per Share Cash Merger Consideration, Non-Designated Equityholder Option Consideration, Designated Equityholder Option Consideration, Warrant Consideration and any amounts from the Indemnity Escrow Sub-Account, the Tax Escrow Sub-Account and the Working Capital Escrow Sub-Account that are released to the Sellers;
(vi) execute and deliver, should the Sellers’ Representative elect to do so in its good faith discretion, on behalf of the Sellers, any amendment to, or waiver of, any term or provision of this Agreement or any Ancillary Agreement, or any consent, acknowledgment or release relating to this Agreement or any other Transaction Document;Ancillary Agreement; and
(vvii) grant any consent, approval take all other actions permitted or waiver required to be taken by or on behalf of the Sellers under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Ancillary Agreement and exercise any and all rights that the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative are permitted or required to do or exercise under this Agreement or any Ancillary Agreement.
(b) The Sellers’ Representative shall not be held liable by any of the Transaction Documents; provided, however, that no such failure Sellers for actions or omissions in exercising or failing to act on exercise all or any of the part power and authority of the Sellers’ Representative shall be deemed a waiver pursuant to this Agreement, except in the case of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto ’s gross negligence, bad faith or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreementwillful misconduct. The Sellers’ Representative shall be entitled to rely on the only person authorized advice of counsel, public accountants or other independent experts that it reasonably determines to take be experienced in the matter at issue, and will not be liable to any Seller for any action so requiredtaken or omitted to be taken in good faith based on such advice. The Sellers will jointly and severally indemnify (in accordance with their Pro Rata Percentages) the Sellers’ Representative from any Losses arising out of its serving as the Sellers’ Representative hereunder, authorized except for Losses arising out of or contemplated caused by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative’s gross negligence, bad faith or willful misconduct. The Sellers’ Representative shall is serving in its capacity as such solely for purposes of administrative convenience, and is not personally liable in such capacity for any of the obligations of the Sellers hereunder, and the Buyer Parties agree that they will not look to the personal assets of the Sellers’ Representative, acting in such capacity, for the satisfaction of any obligations to be each Hatteras Seller’s agent for service performed by the Sellers hereunder.
(c) The Buyer Parties and the other Buyer Indemnified Persons may rely on the appointment and authority of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in granted pursuant to this Section 11.01 until receipt of written notice of the name appointment of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement a successor Sellers’ Representative made in accordance with this Section 11.18 shall be binding upon such Hatteras Seller 11.01. In so doing, the Buyer Parties and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding other Buyer Indemnified Persons may rely on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the all actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act decisions of the Sellers’ Representative under this Agreement and the Ancillary Agreements notwithstanding any dispute or disagreement among any of the Sellers or the Sellers’ Representative with respect to any such action or decision without any liability to, or obligation to inquire of, any Seller, the Sellers’ Representative or any other Person. Any decision, act, consent or instruction of the Sellers’ Representative shall constitute a decision of all the Sellers and shall be final and binding upon each of the Sellers. At any time after the Closing, with or without cause, by a written instrument that is signed in writing by holders of at least a majority-in-interest of the Sellers (determined by reference to their respective Pro Rata Percentages) and delivered to the Buyer, the Sellers may remove and designate a successor Sellers’ Representative; provided, that such successor Sellers’ Representative must be reasonably acceptable to the Buyer. If the Sellers’ Representative shall at any time resign or otherwise cease to function in respect its capacity as such for any reason whatsoever, and no successor that is reasonably acceptable to the Buyer is appointed by such holders of a majority-in-interest of the Sellers (determined by reference to their respective Pro Rata Percentages) within ten (10) Business Days, then the Buyer shall have the right to appoint another Seller to act as the replacement Sellers’ Representative who shall serve as described in this Agreement or and, under such circumstances, the transactions contemplated herebyBuyer Parties and the other Buyer Indemnified Persons shall be entitled to rely on any and all actions taken and decisions made by such replacement Sellers’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Healthsouth Corp)
Sellers’ Representative. (a) Each Effective as of the Hatteras Sellers date hereof, Mercury Fund 2 Holdco LLC hereby irrevocably constitutes, designates is constituted and appoints, authorizes and empowers appointed as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsRepresentative. For purposes of this Agreement, his or her the term “Sellers’ Representative” will mean the representative, true and lawful attorney-in-agent, proxy and attorney in fact of the Company Shareholders for all purposes of this Agreement, the Escrow Agreement, the Paying Agent Agreement and agentany other Related Agreement, with full power and authority on such Person’s behalf. The Sellers’ Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and any Related Agreement, including to: (i) consummate the transactions contemplated by this Agreement, (ii) pay such Person’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of substitution this Agreement, (iii) receive, give receipt and disburse any funds received hereunder or resubstitution, to perform all such acts (under the Paying Agent Agreement or to omit from taking any action), under the Escrow Agreement on behalf of each such Hatteras SellerPerson and to holdback from disbursement any such funds to the extent it reasonably determines may be necessary in accordance with the terms hereof, (iv) execute and deliver on behalf of such Person any Letter of Transmittal and such further instruments as are requiredBuyer reasonably requests, authorized or (v) execute and deliver on behalf of such Person all documents contemplated by this Agreement and any amendment or waiver hereto or thereto or to the other Transaction Documents and the transactions contemplated hereby and therebyPaying Agent Agreement, which includes the power and authority to:
(i) execute and deliver all documents necessary Escrow Agreement or desirable to carry out the intent of this Agreement and any other Transaction Document;
Related Agreement (iiwhich will be binding on all Seller Parties except as expressly set forth herein or therein), (vi) determine whether take all other actions to be taken by or on behalf of such Person in connection herewith, (vii) negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including entering into agreements to effect the conditions foregoing (which will be binding on all Seller Parties) (it being understood action by the Sellers’ Representative will be the sole and exclusive means of asserting or addressing any claims on behalf of Seller Parties, and no Seller Party will have any right to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) act on its own behalf with respect to any such matters, other than any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as or dispute against the Sellers’ Representative in its sole discretion deems appropriate;
Representative), (ivviii) give and receive notices on behalf of such Person, (ix) do each and every act and exercise any and all notices pursuant rights such Person is, or the Company Shareholders collectively are, permitted or required to this Agreement do or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers exercise under this Agreement and (x) authorize the Transaction Documents release of funds to the Buyer Parties under this Agreement, the Escrow Agreement and each other Related Agreement and to take all other actions or refrain from enforcing any right of the Hatteras Sellers or taking all other actions that may be taken by the Sellers’ Representative under the terms of this Agreement, the Escrow Agreement, the Paying Agent Agreement or any other Related Agreement. The Company Shareholders, by approving the Transaction Documentsprincipal terms of the Merger and/or accepting the consideration payable to them hereunder, irrevocably grant unto the Sellers’ Representative full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the transactions contemplated by this Agreement, as fully to all intents and purposes as the Company Shareholders might or could do; provided, however, that the Sellers’ Representative will have no such failure obligation to act on behalf of the part Company Shareholders. Each of the Company Shareholders agrees that such agency is coupled with an interest, is therefor irrevocable without the consent of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, incapacity or bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Sellersuch Company Shareholder.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International, Inc.)
Sellers’ Representative. (a) Each In order to efficiently administer (i) the determination of the Hatteras Merger Consideration and the Actual Closing Date Working Capital Amount, (ii) the distribution of any amounts payable or distributable to Sellers, (iii) the waiver of any condition to the obligations of the Company to consummate the Contemplated Transactions, and (iv) the defense and/or settlement of any Proceedings with respect to which any Buyer Indemnified Party may be entitled to be indemnified pursuant to Section 9 hereof, by approving this Agreement, or by executing and delivering any of the Seller Deliveries, Sellers hereby irrevocably constitutesdesignate BC Sellers’ Representative LLC as their representative (the “Sellers’ Representative”).
(b) Sellers, designates and appointsby approving this Agreement or by executing one of the Seller Deliveries, authorizes and empowers shall authorize the Sellers’ Representative (i) to make all decisions relating to the determination of the Merger Consideration and each successor appointed the Actual Closing Date Working Capital Amount, (ii) to make all decisions relating to the distribution of any amounts payable or distributable to Sellers hereunder, in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company to consummate the Contemplated Transactions, or the defense and/or settlement of any Proceedings with respect to which any Buyer Indemnified Party may be entitled to be indemnified pursuant to Section 9 hereof, (iv) to give and receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as is contemplated to be taken by or on behalf of Sellers by the terms of this Agreement, (vi) to take all other Transaction Documents actions to be taken by or on behalf of Sellers in connection herewith, (vii) to withhold funds to pay Seller-related expenses and obligations, (viii) to withhold additional funds as determined by the Sellers’ Representative in its discretion to pay future or contingent Seller expenses and obligations and (ix) to seek recourse against any Seller for the benefit of the other Sellers in the event of a disbursement to the Buyer Indemnified Parties due to any breach of the representations and warranties made by such Seller in a Seller Delivery.
(c) In the event that the Sellers’ Representative is dissolved, becomes unable to perform its responsibilities hereunder or resigns from such position, Sellers holding, prior to the Closing, a majority of the voting Common Stock and Preferred Stock as set forth in Section 2.4(a) of the Company Disclosure Schedule shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(d) All decisions and actions by the Sellers’ Representative, including, without limitation, any agreement between the Sellers’ Representative and the transactions contemplated hereby Surviving Corporation relating to the determination of the Actual Closing Date Working Capital Amount or the defense or settlement of any Proceedings with respect to which any Buyer Indemnified Party may be entitled to be indemnified pursuant to Section 9 hereof, shall be binding upon all of the Sellers, and therebyno Seller shall have the right to object, which includes dissent, protest or otherwise contest the power same.
(e) By approving this Agreement, or by executing a Letter of Transmittal, an Option Cancellation and authority toPayment Acknowledgement or a Warrant Cancellation and Payment Acknowledgement, Sellers agree that:
(i) execute Parent, Buyer, the Surviving Corporation and deliver all documents necessary each other Buyer Indemnified Party shall be able to rely conclusively on the instructions and decisions of the Sellers’ Representative as to the determination of the Actual Closing Date Working Capital Amount or desirable the settlement of any claims for indemnification by any Buyer Indemnified Party pursuant to carry out the intent of this Agreement and Section 9 hereof or any other Transaction Documentactions required to be taken by the Sellers’ Representative hereunder, and no Seller or party hereunder shall have any cause of action against Parent, Buyer, the Surviving Corporation or any other Buyer Indemnified Party for any action taken by any such Person in reliance upon the instructions or decisions of the Sellers’ Representative;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individualall actions, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee decisions and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part instructions of the Sellers’ Representative shall be deemed a waiver conclusive and binding upon all of such right or interest the Sellers and no Seller shall have any cause of any Hatteras Seller or action against the Sellers’ Representative unless such waiver is in writing signed for any action taken, decision made or instruction given by the Sellers’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers’ Representative;
(xiii) review the Preliminary Statement provisions of this Section 1.9 are independent and provide notice to Purchaser under Section 3.6 of severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any items of disagreement related thereto rights or approval thereof, or if Purchaser does not deliver remedies that any Seller may have in connection with the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral AuditorsContemplated Transactions;
(xiiv) review the Certificate provisions of 2013 Adjusted PTNI this Section 1.9 shall be binding upon the executors, heirs, legal representatives and provide notice to Purchaser under Section 3.7 successors of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNIeach Seller, and agree upon any resolution references in this Agreement or the Escrow Agreement to a Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, whether pursuant to testamentary disposition, the laws of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditorsdescent and distribution or otherwise;
(xiiv) pay the Company Fees and Expenses shall include the sum of $500,000 to be paid to the Sellers’ Representative and to be used by the Sellers’ Representative for the payment of all costs and expenses incurred in respect of, or charged by, parties unaffiliated with by the Sellers’ Representative providing services in connection with the exercise by it of the authority granted to it herein (including reasonable attorney fees and expenses and the fees and expenses of any accountants or other professional advisors retained by the Sellers’ Representative;
(xiii) resolve ). From time to time after the Effective Time, Sellers’ Representative may distribute to Sellers, pro rata in accordance with their respective ownership of all shares of Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding immediately prior to the Effective Time, such portion of such sum as the Sellers’ Representative reasonably determines will not be needed for the payment of future costs and expenses. Any portion of such sum remaining after the final resolution of all claims asserted against, or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of, Sellers hereunder or under the Escrow Agreement and the final distribution to Sellers of all monies that are or could be distributable to them hereunder or under the Escrow Agreement shall be distributed to Sellers in their respective percentages based upon all shares of Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding; provided, however, that if the Sellers’ Representative incurs costs and expenses disproportionately due to a Seller’s breach of representations and warranties made by such Seller in one of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or Seller Deliveries, such breaching Seller shall reimburse the Transaction DocumentsSellers’ Representative for the additional costs and expenses disproportionately incurred; and
(xvvi) perform each such act they will indemnify and thing whatsoever that hold harmless the Sellers’ Representative Representative, severally and not jointly, from and against any and all damages which may at any time be imposed on, incurred by or is required to do, or which asserted against the Sellers’ Representative in its sole discretion determines is desirable to do, pursuant any way relating to or to carry arising out the intent of this Agreement and Agreement, or any other Transaction Document, and related agreement or instrument or any action taken or omitted to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to be taken by the Sellers’ Representative under this Agreement shall survive or in connection herewith, unless such damages resulted solely from the Closing Date or termination bad faith of this Agreement. The the Sellers’ Representative.
(f) All fees and expenses incurred by the Sellers’ Representative in excess of $500,000 shall be paid from any funds otherwise due to Sellers (including from the only person authorized to take any action so requiredEscrowed Amount, authorized or contemplated by this Agreement by any Hatteras Seller andif any, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely after such amount is released to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service ) in proportion to their ownership of process with respect to any disputes regarding or arising out all shares of this Agreement or Preferred Stock that are not converted at the transactions contemplated hereby. Any action taken by Sellers’ Representative Effective Time, plus the Fully Diluted Shares Outstanding as set forth in Section 2.4(a) of the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement Company Disclosure Schedule attached hereto and if no funds are available from the Escrowed Amount, then directly from Sellers pro rata in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirstheir respective ownership of all Shares of Preferred Stock that are not converted at the Effective Time, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement plus the Fully Diluted Shares Outstanding immediately prior to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerEffective Time.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Sellers’ Representative. (a) Each of the Hatteras Sellers Gryphon Partners 3.5, L.P. is hereby irrevocably constitutes, designates constituted and appoints, authorizes and empowers appointed as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsRepresentative. For purposes of this Agreement, his or her the term “Sellers’ Representative” shall mean the representative, true and lawful agent, proxy and attorney in fact of the Company Unitholders for all purposes of this Agreement and the Escrow Agreement, with full power and authority on such Company Unitholder’s behalf (i) to consummate the transactions contemplated herein, (ii) to pay such Company Unitholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to such Company Unitholder and each other Company Unitholder and to hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Units and execution of such further instruments as Purchaser shall reasonably request, (v) to execute and deliver on behalf of such Company Unitholder all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of such Company Unitholder in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Sellers’ Transactions Expenses, any adjustment pursuant to Section 2.10 or any indemnification claim under Article 9, (viii) to waive any condition to the obligations of the Company or the Company Unitholders to consummate the transactions contemplated herein, (ix) to give and receive notices on behalf of the Company Unitholders and (x) to do each and every act and exercise any and all rights which such Company Unitholder is, or the Company Unitholders collectively are, permitted or required to do or exercise under this Agreement. The Company Unitholders, by approving the principal terms of the Merger (through the execution of the Written Consent or otherwise) and/or accepting the consideration payable to them hereunder, irrevocably grant unto said attorney-in-fact and agent, with agent full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute to do and deliver all documents perform each and every act and thing necessary or desirable to carry out be done in connection with the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions transactions contemplated by this Agreement Agreement, as fully to all intents and purposes as the Company Unitholders might or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf could do in person. Each of the Hatteras Sellers for distribution to Company Unitholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part consent of the Sellers’ Representative and shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, incapacity or bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerCompany Unitholder.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller by executing this Agreement hereby irrevocably constitutesconstitutes and appoints ▇▇▇▇ ▇▇▇▇, designates as Sellers’ Representative, with full power and appointsauthority to act in the name of and for and on behalf of such Seller with respect to all matters arising in connection with, authorizes or related to, this Agreement and empowers the Escrow Agreement and the transactions contemplated hereby and thereby. Each Seller hereby appoints Sellers’ Representative as (i) the agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentof such Seller, with full power of substitution or resubstitutionsubstitution, and with full capacity and authority in its sole discretion, to perform all such acts (or to omit from taking any action), act in the name of and for and on behalf of each such Hatteras SellerSeller in connection with all matters arising out of, as are requiredresulting from, authorized or contemplated by or related or incident to this Agreement and the other Transaction Documents Escrow Agreement, and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions agent for service of process for such Seller, and such Seller hereby irrevocably consents to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive service of any and all notices pursuant to this Agreement or process in any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf proceeding arising out of the Hatteras Sellers with respect to any claims against Purchaser or relating to this Agreement or by the Transaction Documents; and
(xv) perform each delivery of such act and thing whatsoever that process to Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingRepresentative. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser the power of Sellers’ Representative shall include the power to represent such Seller with respect to all aspects of this Agreement and the Escrow Agreement, which power shall include the power to (A) receive any payment or transfer of funds to be required to provide notices to the Hatteras Sellers made pursuant to this Agreement solely on behalf of such Seller, (B) waive any and all conditions of this Agreement, (C) amend, modify or supplement this Agreement and the Escrow Agreement in any respect, (D) defend, negotiate or settle, and take any and all other actions with respect to Sellers’ Representative. The the matters set forth in Section 2.5, Section 2.6, Article 10 and Article 11, (E) retain legal counsel or accountants and be reimbursed by Sellers for all fees, expenses and other charges of such legal counsel or accountants, (F) receive notices or other communications, (G) deliver any notices, certificates or other documents required hereunder, (H) take all such other action and to do all such other things as Sellers’ Representative shall be each Hatteras Seller’s agent for service of process deems necessary, appropriate, desirable or advisable with respect to any disputes regarding or arising out of this Agreement and the Escrow Agreement, and (I) perform its obligations as set forth in, and in accordance with, this Agreement and the Escrow Agreement.
(b) Each Seller agrees that Buyer, the Escrow Agent, and their respective Affiliates shall have the absolute right and authority to rely upon the acts taken or the transactions contemplated hereby. Any action omitted to be taken by Sellers’ Representative in the name of or on behalf of Sellers or any Hatteras Seller in connection other Holders and shall have no liability with respect thereto, and none of Buyer, the Escrow Agent, or any matter arising under this Agreement in accordance with this Section 11.18 of their respective Affiliates shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, have any duty to inquire as an inducement to the Parties acts and omissions of Sellers’ Representative, and by approval of the transactions contemplated by this Agreement, Sellers waive any claim arising out of, or right to enter into this Agreement and will object to, any action taken by Buyer, the Escrow Agent, or any of their respective Affiliates in reliance upon the acts taken or omitted to be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised taken by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerRepresentative.
(c) If Sellers’ Representative or its successors and permitted assignsEach Seller agrees that (i) all deliveries by Buyer, as including any payment of funds under Article 2 (including the case may beExpense Amount), advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed deliveries to include Sellers, (ii) Buyer shall not have any duly appointed successor liability with respect to any aspect of the distribution or communication of such deliveries between Sellers’ Representative and any Seller and (iii) any disclosure made to Sellers’ Representative by or on behalf of Buyer shall be deemed to be a disclosure made to each Seller. Each Seller that makes a claim against Buyer alleging the lack of authority of Sellers’ Representative shall indemnify the Buyer Indemnified Parties for Losses incurred or suffered by, or assessed against, such Buyer Indemnified Party as a result of its good faith reliance on the acts or omissions of Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt Each Seller agrees that any payment made by or on behalf of written notice of a change of Buyer to Sellers’ Representative under Section 11.18(c)on a Seller’s behalf shall be deemed a direct payment to a Seller, continue and no Seller shall have any recourse against Buyer or any of its Affiliates in the event that such payment is not delivered to rely, without inquiry, upon the actions of such Seller by Sellers’ Representative as the actions of each Hatteras for any reason.
(d) Each Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree agrees that the amounts deposited in the Expense Fund shall be available for the payment of all fees and expenses reasonably incurred by Sellers’ Representative is a party to in performing its duties and exercising its rights under this Agreement solely in its role of representative and the Escrow Agreement, provided, that any portion of the Hatteras Sellers according to Expense Fund not ultimately required for the terms payment of this Section 11.18. Accordingly, the Parties acknowledge such fees and agree that, in its capacity as Sellers’ Representative, the expenses (if any) shall be returned by Sellers’ Representative shall have no liability toto Sellers based on their respective Seller Pro Rata Percentage, and shall not be liable for any Losses offurther provided, any third Personthat if the Expense Fund is depleted or insufficient, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect may deduct such fees and expenses from the amounts distributed to Sellers’ Representative on behalf of this Agreement or Sellers from the transactions contemplated herebyBuyer Indemnification Amount prior to delivery of such funds to Sellers.
Appears in 1 contract
Sellers’ Representative. (ai) Each The Sellers’ Representative is hereby designated by each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers to serve as the Sellers’ Representative (and each successor appointed with respect to the matters set forth in this Agreement in accordance with this Section 11.18(c2(h).
(ii) By the approval of this Agreement, each Seller hereby irrevocably constitutes and appoints the Sellers’ Representative as itsthe representative, his or her true and lawful attorney-in-fact and agent, with proxy, and attorney in fact for such Seller for all purposes set forth in this Agreement, including the full power and authority on such Seller’s behalf (i) to consummate the transactions contemplated herein; (ii) to pay costs and expenses incurred in connection with the negotiation and performance of substitution this Agreement (whether incurred on or resubstitutionafter the date hereof), including by using funds in the Representative Holdback Account; (iii) to perform pay, on the Sellers’ behalf, all costs, expenses and amounts for which Sellers are responsible under this Agreement (including Sellers’ Allocable Pre-Closing Taxes), including by using funds from the Representative Holdback Amount; (iv) to receive and disburse any funds owing to such acts Seller in accordance with this Agreement; (v) to endorse and deliver any certificates or instruments representing such Seller’s Shares and execute such further instruments of assignment for and on behalf of such Seller as Buyer shall request; (vi) to omit execute and deliver on behalf of such Seller any amendment or waiver hereto; (vii) (A) to negotiate and otherwise determine any post-Closing adjustments to the Purchase Price, (B) to dispute or refrain from taking any action)disputing, on behalf of each such Hatteras Seller, as are required, authorized or contemplated any amounts to be received by any Sellers under this Agreement and or any Ancillary Agreements or any claim made by the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of Buyer under this Agreement or any Ancillary Agreements, (C) to negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any Ancillary Agreements, and (D) to execute, on behalf of such Seller, any settlement agreement, release or other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) document with respect to any claim for indemnification by any Purchaser Indemnitee and such dispute or remedy; (viii) to resolve engage attorneys, accountants, agents or consultants on behalf of such claims as Sellers’ Representative Seller in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to connection with this Agreement or any other Transaction Document;
(v) grant agreement contemplated hereby and paying any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
fees related thereto; (ix) to enforce take all other actions to be taken by or on behalf of such Seller in connection herewith; (x) to retain the Representative Holdback Amount and protect the rights pay any expenses of the Hatteras Sellers under this Agreement and Company, the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative therefrom; (xi) give and accept communications and notices on behalf of the Sellers; (xii) to receive service of process on behalf of each Seller in connection with any claims under this Agreement, the Ancillary Agreements or any other related document or instrument; and (xiii) to do each and every act and exercise any and all rights which such Seller is permitted or required to do or exercise under this Agreement or the Transaction DocumentsAncillary Agreements. Each Seller agrees that such agency and proxy and the authority granted to Sellers’ Representative (A) are coupled with an interest, are therefore irrevocable without the consent of the Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of such Seller and (B) shall survive Closing. All decisions and actions by the Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Buyer shall be entitled to conclusively rely, without inquiry, on such appointment and the authority of the Sellers’ Representative and to treat the Sellers’ Representative as the duly appointed attorney-in-fact of each Seller and is hereby relieved from any liability to any Person for any acts done by it in reliance on the appointment and authority of the Sellers’ Representative hereunder. Notices given to the Sellers’ Representative in accordance with the provisions of this Agreement shall constitute notice to the Sellers for all purposes under this Agreement.
(iii) The Sellers’ Representative may resign from its capacity as the Sellers’ Representative at any time by prior written notice delivered to Sellers and Buyer. If there is a vacancy at any time in the position of the Sellers’ Representative for any reason, a successor Sellers’ Representative shall be appointed by the vote of Sellers whose aggregate Allocable Portions exceed fifty percent (50%).
(iv) Sellers’ Representative, in its capacity as Sellers’ Representative, shall have no liability to Buyer for any default under this Agreement or any Ancillary Agreement by any Seller, including any failure to make deliveries required under Section 2(d).
(v) Each Seller shall be responsible for, and promptly upon the written request of Sellers’ Representative shall pay to or as directed by Sellers’ Representative, its allocable portion of any fees and expenses reasonably incurred by Sellers’ Representative in connection with this Agreement and any Ancillary Agreement; provided, however, that no the Sellers’ Representative shall first obtain such fees and expenses from any remaining portion of the Representative Holdback Account.
(vi) Each Seller hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Sellers’ Representative against its Allocable Portion of all fees, costs, expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Sellers’ Representative in connection with any action, suit or proceeding to which the Sellers’ Representative is made a party by reason of the fact it is or was acting as the Sellers’ Representative pursuant to the terms of this Agreement.
(vii) The Sellers’ 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 Sellers’ 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 Sellers’ Representative shall not be relieved of any liability imposed by law for willful misconduct. The Sellers’ Representative shall not be liable to the Sellers for any apportionment or distribution of payments made by the Sellers’ Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Seller to whom payment was due, but not made, shall be to recover from other Sellers any payment in excess of the amount to which they are determined to have been entitled. The Sellers’ Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Sellers’ Representative nor any agent employed by it shall incur any liability to any Seller by virtue of the failure to act on the part or refusal of the Sellers’ Representative shall be deemed a waiver for any reason to consummate the transactions contemplated hereby or relating to the performance of such right its other duties hereunder, except for actions or interest of any Hatteras Seller omissions constituting fraud or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;bad faith.
(xviii) review The decision of each Seller to consummate the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party transactions contemplated pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement has been made by such Seller independently of any other Seller and independently of any information, materials, statements or opinions as to the Transaction Documents; and
(xv) perform each such act terms and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent conditions of this Agreement and any Ancillary Agreement that may have been made or given by Sellers’ Representative, any other Transaction DocumentSeller or by any agent, employee or other representative of Sellers’ Representative, or any other Seller, and to amend neither Sellers’ Representative nor any Seller or supplement any of the foregoing. their respective agents, employees or other representatives shall have any liability to any other Seller (or any Person) relating to or arising from any such information, materials, statement or opinions, except as expressly provided in a written agreement, if any, between or among Sellers.
(ix) All of the indemnities, immunities and powers granted to the Sellers’ Representative by the Sellers under this Agreement shall survive the Closing Date or and/or any termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Sellers’ Representative. (a) Each Sellers Representative is hereby designated by each of the Hatteras Sellers to serve as the Sellers Representative with respect to the matters set forth in this Agreement and the Equity Commitment Letter to be performed by the Sellers Representative. By the approval of this Agreement, each Seller hereby irrevocably constitutesconstitutes and appoints the Sellers Representative as the representative, designates agent, proxy, and appointsattorney in fact for such Seller for all purposes set forth in this Agreement and the Equity Commitment Letter, authorizes including the full power and empowers authority on such Seller's behalf to (i) interpret the terms and provisions of this Agreement, the Ancillary Agreements and the Equity Commitment Letter, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, the Ancillary Agreements and the Equity Commitment Letter, (iii) receive service of process in connection with any claims under this Agreement or the Equity Commitment Letter, (iv) exclusively agree to, negotiate, enter into settlements and compromises of, assume the defense of claims and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Sellers Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) make any determinations and settle any matters in connection with the adjustments to the Initial Purchase Price and the Post-Closing Adjustment pursuant to Section 2.3, (vii) pay costs and expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date hereof), including by using funds in the Reserve Amount, (viii) pay, on the Sellers’ Representative ' behalf, all costs, expenses and amounts for which Sellers are responsible under this Agreement, including by using funds from the Reserve Amount (and each successor appointed in accordance with Section 11.18(c)ix) as its, his dispute or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit refrain from taking any action)disputing, on behalf of each such Hatteras Seller, as are required, authorized or contemplated any amounts to be received by any Sellers under this Agreement and or any Ancillary Agreements, any matters under the other Transaction Documents and Equity Commitment Letter or any claim made by the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of Buyer under this Agreement or any Ancillary Agreements, (x) negotiate and compromise, on behalf of such Seller, any other Transaction Document;
dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, any Ancillary Agreements or the Equity Commitment Letter, (iixi) determine whether the conditions to Closing engage attorneys, accountants, agents or consultants on behalf of Sellers in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) connection with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;agreement contemplated hereby and paying any fees related thereto, (xii) administer, receive, pay out, deduct, hold back and/or redirect any funds, including the Reserve Amount, that may be payable to any Seller pursuant to the terms of this Agreement or any Ancillary Agreement for any costs, fees, expenses and other liabilities incurred by the Sellers Representative, acting in such capacity, in connection with this Agreement, the Ancillary Agreements or the Equity Commitment Letter, (xiii) to retain the Reserve Amount and pay any expenses of the Company, the Sellers or the Sellers Representative therefrom, and (xiv) take all actions necessary or appropriate in the judgment of the Sellers Representative on behalf of the Sellers in connection with this Agreement, the Ancillary Agreements and the Equity Commitment Letter. Each Seller agrees that such agency and proxy and the authority granted to Sellers Representative (i) are coupled with an interest, are therefore irrevocable without the consent of the Sellers Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of such Seller and (ii) shall survive Closing. All decisions and actions by the Sellers Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(vb) grant Such agency may be changed by the holders of a majority in interest of the Shares (the "Majority-in-Interest") from time to time upon not less than five (5) days' prior written notice to the Buyer. The Sellers Representative, or any consentsuccessor hereafter appointed, approval or waiver may resign at any time by written notice to the Buyer. A successor Sellers Representative will be named by the Majority-in-Interest. All power, authority, rights and privileges conferred in this Agreement to the Sellers Representative will apply to any successor Sellers Representative.
(c) Sellers Representative, in its capacity as Sellers Representative, shall have no liability to Buyer for any default under this Agreement or any other Transaction Document;Ancillary Agreement by any Seller.
(vid) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receiveEach Seller shall be responsible for, and enforce promptly upon the right written request of Sellers Representative shall pay to receiveor as directed by Sellers Representative, its Allocable Portion of any payments contemplated hereunder on behalf of the Hatteras fees and expenses reasonably incurred by Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under Representative in connection with this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction DocumentsAncillary Agreement; provided, however, that no the Sellers Representative shall first obtain such failure to act on the part fees and expenses from any remaining portion of the Sellers’ Reserve Amount.
(e) Each Seller hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Sellers Representative shall be deemed against its Allocable Portion of all fees, costs, expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Sellers Representative in connection with any action, suit or proceeding to which the Sellers Representative is made a waiver party by reason of the fact it is or was acting as the Sellers Representative pursuant to the terms of this Agreement.
(f) The decision of each Seller to consummate the transactions contemplated pursuant to this Agreement has been made by such right or interest Seller independently of any Hatteras other Seller and independently of any information, materials, statements or opinions as to the terms and conditions of this Agreement and any Ancillary Agreement that may have been made or given by Sellers Representative, any other Seller or the by any agent, employee or other representative of Sellers Representative, or any other Seller, and neither Sellers Representative nor any Seller or any of their respective agents, employees or other representatives shall have any liability to any other Seller (or any Person) relating to or arising from any such information, materials, statement or opinions, except as expressly provided in a written agreement, if any, between or among Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;.
(xg) review the Preliminary Statement and provide notice to Purchaser The Sellers Representative will not be liable for any act done or omitted under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ this Agreement as Sellers Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, while acting in good faith, including and any act taken or omitted to be taken pursuant to the advice of counsel will be conclusive evidence of such good faith. The Buyer agrees that it will not look to the personal assets of the Sellers Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Company (Apre-Closing) or the Sellers, as the case may be. In performing any of the Sellers Representative's duties under this Agreement or any Ancillary Agreements, the Sellers Representative will not be liable to resolve a disputed claim the Sellers for indemnification asserted by any losses that any such Buyer Indemnified Party pursuant Person may incur as a result of any act, or failure to Article Xact, by the Sellers Representative under this Agreement or any Ancillary Agreements, and (Bthe Sellers Representative will be indemnified and held harmless by the Sellers for all losses, except to the extent that the actions or omissions of the Sellers Representative constituted gross negligence or willful misconduct. The limitation of liability provisions of this Section 11.1(g) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance will survive the termination of that defense;this Agreement and the resignation of the Sellers Representative.
(xivh) pursue or resolve any claim under Article X and Each Seller hereby authorizes the Sellers Representative to otherwise have power and authority to institute legal action or otherwise act pay from the Reserve Amount on behalf of such Seller, and to the Hatteras extent paid by the Sellers with respect Representative from its own funds, obtain reimbursement from the Reserve Amount for, any fees, costs and expenses incurred by the Sellers Representative in the performance of its role as Sellers Representative hereunder (whether prior to any claims against Purchaser relating or after the Closing). Following payment by the Sellers Representative of amounts pursuant to this Agreement or Section 11.1, the Transaction DocumentsSellers Representative shall distribute to each Seller such Seller's Allocable Portion of the remaining Reserve Amount, if any; and
provided, however, that (xvi) perform each any such act amounts to be released to Optionholders shall be reduced by the applicable employer portion of payroll taxes related to such amount, which portion shall be paid to the Company (and thing whatsoever the Buyer and the Sellers Representative shall cooperate in good faith to calculate the applicable employer portion of payroll taxes related to such amount) and (ii) any such amounts to be released to Optionholders shall, after giving effect to the reduction referred to in clause (i), be paid to the Company for further payment by the Company (and the Buyer agrees to cause the Company to promptly pay) to the applicable Optionholders through the Company payroll in accordance with Section 2.3(f) (provided that Sellers’ any Optionholder who is not an employee of the Company at the time of such payment shall be paid directly by the Company and not via payroll). The Sellers Representative may be make such distributions in multiple pro rata installments as the Sellers Representative deems prudent in the circumstances. For the avoidance of doubt, Sellers Representative may retain the Reserve Amount for, in whole or is required to doin part, or which Sellers’ Representative for so long as Sellers Representative, in its sole discretion discretion, determines is desirable to do, pursuant to necessary or appropriate to carry out the intent transactions contemplated by this Agreement. For all Tax purposes, the Reserve Amount shall be treated as having been received and voluntarily set aside by the Sellers at the time of this Agreement Closing, after any withholding required by applicable Tax Law; provided, that any such withholding shall be applied against amounts payable to the Optionholders hereunder on the Closing Date and any other Transaction Document, and to amend or supplement any of not against the foregoing. Reserve Amount.
(i) All of the indemnities, immunities and powers granted to the Sellers’ Sellers Representative under this Agreement Section 11.1 shall survive the Closing Date or and/or any termination of this Agreement. .
(j) The Sellers’ Representative shall be Buyer may rely on the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality appointment and authority of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers Representative granted pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Section 11.1 until receipt of written notice of the appointment of a successor Sellers Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement made in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs11.1. In so doing, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding Buyer may rely on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the all actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative decisions of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement and the Escrow Agreement notwithstanding any dispute or otherwise in respect disagreement among any of this Agreement the Sellers or the transactions contemplated herebySellers Representative with respect to any such action or decision without any liability to, or obligation to inquire of, any Seller, the Sellers Representative or any other Person.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby Seller irrevocably constitutesnominates, designates constitutes and appoints, authorizes and empowers appoints the Sellers’ Representative (as its agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfact, with full power of substitution or resubstitutionsubstitution, to perform all act in the name, place and stead of such acts (or Seller with respect to omit from taking the transactions described in this Agreement, to calculate ultimately and to resolve any action)disputes regarding the amount of the Indebtedness and the Transaction Expenses, and to act on behalf of each such Hatteras SellerSeller in any amendment of or litigation involving this Agreement or any claim for indemnification pursuant to Article VIII or under the Escrow Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as are required, authorized the Sellers’ Representative shall deem necessary or contemplated by this Agreement and the other Transaction Documents and appropriate in conjunction with any of the transactions contemplated hereby and therebydescribed in this Agreement, which includes including the power and authority topower:
(i) execute and deliver to take all documents action necessary or desirable in connection with the waiver of any condition to carry out the intent obligations of each Seller to consummate the transactions described in this Agreement and any other Transaction DocumentAgreement;
(ii) determine whether to negotiate, execute (or have executed) and deliver all ancillary agreements (including the conditions Transaction Documents), statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to Closing be given in Article VII have been satisfiedconnection with the consummation of the transactions described in this Agreement (it being understood that, upon request by Buyer, each Seller shall execute and deliver any such documents which the Sellers’ Representative agrees to execute);
(iii) serve as the named party (not in his individual, but solely in his representative capacity) to act for Sellers with respect to any claim for indemnification by any Purchaser Indemnitee all Purchase Price matters, including all Purchase Price allocation and adjustment matters referred to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;herein, including without limitation, calculation of Indebtedness, calculation of Transaction Expenses, calculation and delivery of the Closing Balance Sheet and Post-Closing Adjustments; and
(iv) to give and receive any and all notices pursuant and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and to take all actions necessary to settle, pay or take any other Transaction Document;actions with respect to each Seller’s indemnity obligations under Article VIII; and
(v) grant any consent, approval or waiver to take all actions which under this Agreement may be taken by a Seller (including under Article VIII) and to do or refrain from doing any other Transaction Document;
(vi) make all other elections further act or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder deed on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or a Seller which the Sellers’ Representative under this Agreement deems necessary or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is appropriate in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect his sole discretion relating to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent subject matter of this Agreement as fully and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras completely as a Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignscould do if personally present.
(b) The grant Sellers’ Representative hereby accepts his appointment as attorney-in-fact for each Seller.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other agreement executed in connection with the transactions described in this Agreement: (i) each Buyer Indemnified Party shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to any claim for indemnification, compensation or reimbursement pursuant to Article II or Article VIII or pursuant to the Escrow Agreement; and (ii) Buyer, each Buyer Indemnified Party, the Escrow Agent and each Seller shall be entitled to rely conclusively (without further evidence of authority provided any kind whatsoever) on any document executed or purported to be executed on behalf of a Seller by the Sellers’ Representative, and on any other action taken or purported to be taken on behalf of a Seller by the Sellers’ Representative, as fully binding upon each Seller. A decision, act, consent or instruction of the Sellers’ Representative, including an amendment, extension, waiver or termination of this Agreement pursuant to Section 10.1 or Section 11.1, shall constitute a decision of each Seller and shall be final, binding and conclusive upon each Seller; and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of each Seller. The Escrow Agent and Buyer are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Sellers’ Representative.
(d) Each Seller recognizes and intends that the power of attorney granted in this Section 11.1811.12: (i) is coupled with an interest and is being grantedirrevocable, in part, as an inducement to (ii) may be delegated by the Parties to enter into this Agreement Sellers’ Representative and will be irrevocable and (iii) shall survive the death, incompetencydissolution, bankruptcy sale or liquidation other change of any Hatteras Seller and will be binding on any successor thereto; and control of a Seller.
(iie) subject to this Section 11.17, may be exercised by The Sellers’ Representative acting will incur no Liability of any kind with respect to any action or omission by signing as the Sellers’ Representative in connection with the Sellers’ Representative’s services pursuant to this Agreement and shall not be responsible to a Seller for any Losses or expenses that a Seller may suffer by reason of the performance by the Sellers’ Representative of its duties under this Section 11.12 other than Losses or other damages arising from the fraud, willful breach or intentional misrepresentation in the performance of the Sellers’ Representative’s duties under this Section 11.12. By virtue of the execution of this Agreement, each Seller hereby agrees to release, defend and hold harmless the Sellers’ Representative, his agents and Affiliates (the “Representative Parties”) from, and to indemnify the Representative Parties against, any Hatteras Seller.
and all losses, Liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (cincluding the fees and expenses of counsel) If for any action taken or not taken by the Sellers’ Representative in his capacity as attorney-in-fact under this Section 11.12, other than Losses or its successors and permitted assignsother damages arising from the fraud, as willful breach or intentional misrepresentation in the case may be, advise performance of the Hatteras Sellers that it is unavailable Sellers’ Representative’s duties under this Section 11.12. Each Seller agrees to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative reimburse the Sellers’ Representative will be appointed by the remaining Principals; providedfor any costs, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned expenses or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree indemnification obligations that the Sellers’ Representative is a party to incurs on behalf of Sellers under this Agreement solely in its role of representative of or the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge Escrow Agent.
(f) Each Seller acknowledges and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, agrees that any and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act all fees and expenses of the Sellers’ Representative under incurred in connection with the performance of the Sellers’ Representative’s duties hereunder, and any and all claims, expenses, Losses, or other costs which may come due as an obligation of Sellers hereunder, including without limitation payment of Indebtedness and Transaction Expenses, shall be, as among Sellers, the obligation of each Sellers’ proportionate to their Percentage Interest (a “Proportionate Share”), and each Seller hereby agrees that to the extent Sellers are obligated to make payments of any such obligations pursuant to this Agreement Agreement, then Sellers’ Representative may offset such claims against any amounts due to Sellers hereunder, proportionate to such Seller’s Percentage Interest, and upon notice from the Sellers’ Representative of such a claim, each Seller shall contribute such Seller’s Proportionate Share to the Sellers’ Representative by wire transfer of immediately available funds within five Business Days after receipt of such notice.
(g) The Sellers’ Representative may resign at any time. Sellers (acting by majority of their respective Percentage Interests) shall designate a replacement Sellers’ Representative upon the resignation, death or otherwise in respect disability causing him to be unable to serve, of this Agreement or the transactions contemplated herebySellers’ Representative by written notice to Buyer.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller Party hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints the Sellers’ Representative (as agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfor such Seller Party, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute to represent such Seller Party and deliver all documents necessary or desirable to carry out the intent of this Agreement such Seller Party’s successors and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) assigns with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers matters arising under this Agreement and the Transaction Documents Indemnification Escrow Agreement and to refrain from enforcing any right of the Hatteras Sellers or all actions taken by the Sellers’ Representative under this Agreement or the Transaction DocumentsIndemnification Escrow Agreement will be binding upon each Seller Party and such Seller Party’s successors and assigns as if expressly ratified and confirmed in writing by them. Without limiting the generality of the foregoing, the Sellers’ Representative has full power and authority, on behalf of each Seller Party and such Seller Party’s successors and assigns, to (i) give and receive notices and communications for and on behalf of Seller Parties, (ii) execute and deliver all documents and agreements contemplated by this Agreement, each with such additions, modifications or deletions as the Sellers’ Representative may deem necessary or advisable and appropriate, and to consummate all of the transactions contemplated in accordance therewith, (iii) agree to, negotiate and enter into, on behalf of the Seller Parties, any amendments, consents and waivers under this Agreement and any documents and agreements contemplated hereby pursuant to the terms set forth herein and therein, (iv) make and receive payments on behalf of the Seller Parties pursuant to the terms set forth in this Agreement and any documents and agreements contemplated hereby, (v) interpret the terms and provisions of this Agreement, (vi) take such actions required to administer the provisions this Agreement and all documents and agreements contemplated hereby, (vii) dispute or fail to dispute any Third-Party Claim or other claim under this Agreement or the Indemnification Escrow Agreement, (viii) negotiate and compromise any dispute that may arise under this Agreement or the Indemnification Escrow Agreement, and sign any releases or other documents with respect to any such dispute, and (ix) take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Each Seller Party will be deemed a party or a signatory to any agreement, document, instrument, or certificate for which the Sellers’ Representative signs on behalf of such Seller Party; provided, however, that the Sellers’ Representative will not have the power or authority to execute an Employment Agreement for, or on behalf of, any Seller Party. All decisions, actions and instructions by the Sellers’ Representative will be conclusive and binding on each Seller Party and no such failure Seller Party shall have any right to act object, dissent, protest or otherwise contest the same.
(b) The Seller Parties will pay, indemnify, and hold harmless Purchaser and its members, shareholders, partners, managers, officers, directors, employees, agents and Affiliates from and against any Losses that they may suffer or sustain as the result of any claim by any Person that an action taken by the Sellers’ Representative on behalf of any Seller Party is not binding on, or enforceable against, any Seller Party. Purchaser has the right to rely conclusively on the part instructions and decisions of the Sellers’ Representative shall be deemed a waiver of such right or interest of as to any Hatteras Seller or actions taken by the Sellers’ Representative unless hereunder, and no Party will have any cause of action against Purchaser for any action taken by Purchaser in reliance upon the instructions or decisions of the Sellers’ Representative.
(c) The appointment of the Sellers’ Representative is an agency coupled with an interest and is irrevocable, and any action taken by the Sellers’ Representative pursuant to the authority granted in this Section 12.17 is effective and absolutely binding on each Seller Party notwithstanding any contrary action of or direction from any Seller Party. The death or incapacity, or dissolution or other termination of existence, of any Seller Party does not terminate the authority and agency of the Sellers’ Representative (or successor thereto). The provisions of this Section 12.17 are binding upon the executors, heirs, legal representatives and successors of each Seller Party, and any references in this Agreement to any Seller Party means and includes the successors to such waiver is in writing signed Seller Party’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. No Seller Party has any right to assert, defend or otherwise pursue any claims under Article 12 (it being understood that all such claims may be brought only by the Sellers’ Representative;
(x) review ), and Purchaser shall have no obligation to acknowledge the Preliminary Statement and provide notice to Purchaser under Section 3.6 rights of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated Seller hereunder except through exclusive interaction with the Sellers’ Representative providing services to the Sellers’ Representative;.
(xiiid) resolve or otherwise defend Promptly following the release of any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf portion of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted Indemnification Escrow Amount to the Sellers’ Representative under this Agreement shall survive pursuant to the Closing Date terms of the Indemnification Escrow Agreement, the Sellers’ Representative will cause such escrowed funds to be disbursed and paid to the appropriate Persons.
(e) Each Seller Party hereby forever releases and discharges the Sellers’ Representative from any Liability which may arise in connection with the Sellers’ Representative’s performance in good faith and any acts or termination omissions which the Sellers’ Representative takes on behalf of the Seller Parties in accordance with the terms of this AgreementSection 12.17, except in the case of gross negligence or willful misconduct of the Sellers’ Representative. Each Seller Party hereby agrees to indemnify and to save and hold harmless the Sellers’ Representative from any Liability incurred by the Sellers’ Representative based upon or arising out of any act, whether of omission or commission, of the Sellers’ Representative pursuant to the authority herein granted, other than acts, whether of omission or commission, of the Sellers’ Representative that constitute gross negligence or willful misconduct in the exercise by the Sellers’ Representative of the authority granted by this Section 12.17. The Sellers’ Representative shall be entitled to rely on the only person authorized to take any action so requiredadvice of counsel, authorized accountants or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative other independent experts experienced in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiryat issue, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller any error in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered judgment or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party act or to any Indemnified Party in connection with any obligations, actions or failure to act omission of the Sellers’ Representative under pursuant to such advice shall in no event subject the Sellers’ Representative to Liability to the Seller Parties.
(f) Nothing set forth in this Agreement Section 12.17 will alter or otherwise in respect affect, or be deemed or construed to alter or affect, the obligation of this Agreement or the transactions contemplated hereby.Sellers to pay any Indemnified Losses due to a Purchaser Indemnified Party pursuant to Article 11. [Signature Page Follows]
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Healthcare Corp)
Sellers’ Representative. (a) Each Concurrent with the execution and delivery of this Agreement, each of the Hatteras Sellers hereby irrevocably constitutesshall be deemed to appoint LUK LLC as their agent, designates representative and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact (“Sellers’ Representative”) and agent, with LUK LLC hereby agrees to act as Sellers’ Representative.
(b) The Sellers’ Representative has the full power of substitution or resubstitution, and authority to perform all such acts (or to omit from taking any action), act on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller in connection with this Agreement and the other Transaction Documents and including, without limitation, the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute and deliver to take all documents action necessary or desirable in connection with the waiver of any condition to carry out the intent obligations of the Sellers to consummate the transactions contemplated by this Agreement and any other Transaction DocumentAgreement;
(ii) determine whether to negotiate, execute and deliver all statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the conditions to Closing in Article VII have been satisfiedconsummation of the transactions contemplated by this Agreement;
(iii) serve as to terminate this Agreement if the named party (not in his individual, but solely in his representative capacity) with respect Sellers are entitled to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriatedo so;
(iv) to give and receive any and all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims under this Agreement, including service of process in connection with arbitration;
(v) to enter into the Escrow Agreement on behalf of the other Sellers, authorize delivery to the Buyer of cash from the Escrow Account in satisfaction of indemnification claims, object to deliveries to the Buyer of cash from the Escrow Account in satisfaction of indemnification claims, agree to negotiate, enter into settlements and compromises of, and comply with orders of Governmental Entities and awards of arbitrators with respect to such claims and otherwise take all actions in respect of the Escrow Agreement and the Escrow Account which the Sellers’ Representative determines is reasonably appropriate in the circumstances;
(vi) to take all actions which under this Agreement may be taken by the Sellers and to do or refrain from doing any further act or deed on behalf of the Sellers which the Sellers’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Sellers could do if personally present; provided that nothing in this subsection shall permit the Sellers’ Representative from taking any action or to refrain from taking any action with respect to a Seller pursuant to Section 5, 8.4, 8.8, 8.9 and 8.10 which would give rise to any liability of such Seller without such Seller’s written consent; and
(vii) to take all actions necessary or appropriate in the judgment of Sellers’ Representative for the accomplishment of the foregoing. Any notices delivered by Sellers’ Representative pursuant to this Agreement or any other Transaction Document;the Escrow Agreement shall also be delivered to the addressees in Section 15.5.
(vc) grant any A decision, act, consent, approval or instruction of Sellers’ Representative, including an amendment, extension or waiver under of this Agreement or any other Transaction Document;claim, right or remedy provided hereunder, shall constitute a decision of the Sellers immediately prior to the Closing Date and shall be final, binding and conclusive upon the Sellers immediately prior to the Closing Date; and the Escrow Agent and the Buyer may rely upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. The Escrow Agent and the Buyer are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Sellers’ Representative.
(vid) make all other elections Sellers’ Representative shall have reasonable access to information about the Company and its Subsidiaries and the reasonable assistance of their respective officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that Sellers’ Representative shall treat confidentially and not disclose such nonpublic information from or decisions contemplated by this Agreement about the Company or any Subsidiary to anyone other Transaction Document;than the Sellers immediately prior to the Closing Date (except on a need to know basis to counsel and experts necessary to perform its duties hereunder who agree to treat such information confidentially).
(viie) approve waivers, clarifications or post-Closing modifications Sellers’ Representative shall be solely responsible for disbursing to this Agreement or the Sellers their pro rata share of any other Transaction Document;
(viii) receive, and enforce all amounts paid to the right to receive, any payments contemplated hereunder Sellers’ Representative on behalf of the Hatteras Sellers pursuant to this Agreement. The Sellers’ Representative, acting pursuant to this Section 11, shall not be liable to any Seller for distribution any act or omission, except in connection with any act or omission that was the result of the Sellers’ Representative’s gross negligence or willful misconduct. The Sellers’ Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to the Hatteras Sellers;be genuine (including facsimiles thereof).
(ixf) The Sellers agree, severally but not jointly, to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or promptly indemnify the Sellers’ Representative under this Agreement for, and to hold the Sellers’ Representative harmless against, any and all demands, claims, actions or the Transaction Documents; providedcauses of action, howeversuit, that no such failure to act proceeding, claim, assessments, losses, amounts paid in settlement, damages, liabilities, obligations, judgments, settlements, interest and penalties, costs (including, without limitation, costs of investigation or enforcement) and expenses (including, without limitation, reasonable legal fees and disbursements incurred in connection therewith and in seeking indemnification therefor, incurred without gross negligence or willful misconduct on the part of the Sellers’ Representative shall be deemed a waiver Representative, arising out of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated connection with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faithcarrying out its duties under this Agreement, including (A) to resolve a disputed claim for indemnification asserted any Damages incurred by any such Buyer Indemnified Party pursuant to Article X, the Seller’s Representative and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, Affiliates pursuant to or to carry out in connection with the intent of transactions contemplated by this Agreement, the Stockholders Agreement dated as at the date hereof among the Sellers and the Escrow Agreement and any other Transaction Document, costs and to amend or supplement any expenses of the foregoing. All of the indemnities, immunities and powers granted to defending the Sellers’ Representative under this Agreement shall survive the Closing Date or termination against any claim of this Agreementliability with respect thereto. The Sellers’ Representative shall be may consult with counsel of its own choice and will have full and complete authorization and protection from liability to the only person authorized to take Sellers for any action so required, authorized or contemplated taken and suffered by this Agreement by any Hatteras Seller and, without limiting it in good faith and in accordance with the generality opinion of the foregoing, Purchaser such counsel; provided that in no event shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras a Seller’s agent for service of process liability under this Section 11(f), together with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising all other liability under this Agreement in accordance with this (other than such Seller’s liability under Section 11.18 shall be binding upon 5, 8.4, 8.8, 8.9 and 8.10), exceed the portion of the Purchase Price to which such Hatteras Seller and its heirs, representatives, successors and permitted assignsis entitled.
(bg) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, Sellers agree that LUK LLC may be exercised by Sellers’ Representative acting by signing resign as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken replaced by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role wholly-owned Subsidiary of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity Leucadia (as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyselected by Leucadia).
Appears in 1 contract
Sources: Stock Purchase Agreement (Broadview Networks Holdings Inc)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c11.10(c)) ), as itsits or his sole, his or her exclusive, true and lawful representative, agent and attorney-in-fact and agentfact, with full power of substitution or resubstitution, but without the right to assign its rights or delegate its duties without the prior written consent of Sellers, and subject to Section 11.10(b), to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and therebyhereby, which includes including the power and authority to:
to (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
Agreement; (ii) determine whether the conditions to Closing in Article VII Section 7 have been satisfied;
; (iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee Buyer Indemnified Party and to resolve such claims as the Sellers’ Representative in its sole discretion deems appropriate;
; (iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
Agreement; (v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
Agreement; (vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
Agreement; (viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(xvii) review the Preliminary Statement and provide notice to Purchaser Buyer under Section 3.6 2.3(b)(iv) of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver and agree upon any resolution of any dispute with respect thereto; (viii) review the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Initial Target Statement and the Final Closing Working Capital Statementprovide notice to Buyer under Section 2.2(b)(iv) of any items of disagreement related thereto or approval thereof, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
thereto; (xiix) review the Certificate of 2013 Adjusted PTNI any Earn-Out Statement and provide notice to Purchaser Buyer under Section 3.7 2.2(a)(iv) of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
thereto; (xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiiix) resolve or otherwise defend any Purchaser Indemnitee Buyer Indemnified Party as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article XSection 9, and (B) to defend any such Buyer Indemnified Party from any Loss under Article XSection 9, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
; and (xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xvxi) perform each such act and thing whatsoever that the Sellers’ Representative may be or is required to do, or which that the Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction DocumentAgreement, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: 11.10 (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties Buyers to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.1711.10, may be exercised by the Sellers’ Representative acting by signing as the Sellers’ Representative of any Hatteras Seller.
(c) If the Sellers’ Representative or his or its heirs, representatives, successors and permitted assigns, as the case may be, advise the Hatteras advises Sellers that it is unavailable to perform it its duties hereunder, within thirty (30) days three Business Days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; providedSellers (it being understood and agreed, however, that, unless the successor if either T▇▇▇▇▇▇ ▇▇▇▇▇▇ or W▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is unavailable to perform his duties hereunder, W▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or T▇▇▇▇▇▇ ▇▇▇▇▇▇, as applicable, shall continue to perform his duties hereunder, and no alternative Sellers’ Representative is a Principalwill be appointed by Sellers, the appointment of such successor Sellers’ Representative shall be subject unless and until both W▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and T▇▇▇▇▇▇ ▇▇▇▇▇▇ are unavailable to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayedperform their respective duties hereunder). Any references in this Agreement to the Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser .
(d) Buyers may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), 11.10(c) may continue to rely, without inquiry, upon the actions of the Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.1811.10. Each Hatteras Seller hereby authorizes the other Parties hereto Buyers to disregard any notice delivered or other action taken by any Hatteras Seller Sellers pursuant to this Agreement except for the Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RCS Capital Corp)
Sellers’ Representative. (a) Each of Seller by executing this Agreement appoints ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the "Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)' Representative") as itshis, his her or her true its agent and lawful attorney-in-fact for the purposes set forth herein. The Sellers' Representative shall have the full and agentexclusive power and authority to act in each Seller's name, place and stead with full power of substitution or resubstitutionrespect to all matters relating to this Agreement, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this the Escrow Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority toincluding, without limitation:
(i) To modify, waive and amend, and execute and acknowledge and deliver all documents necessary or desirable to carry out the intent Buyer such modifications, waivers and amendments, to any provision of this Agreement and any other Transaction Document;the Escrow Agreement as the Sellers' Representative shall approve, the approval of such amendments, waivers and modifications by the Sellers' Representative and all of the terms and conditions thereof to be conclusively evidenced by the execution and delivery of such amendments, waivers and modifications by the Sellers' Representative.
(ii) determine whether To complete, modify, amend, execute, acknowledge and deliver all instruments, documents, certificates and instructions as the conditions Sellers' Representative deems necessary in order to Closing in Article VII have been satisfied;effect the transactions contemplated by this Agreement and the Escrow Agreement.
(iii) serve as the named party (not To retain legal counsel in his individual, but solely in his representative capacity) connection with all matters and things set forth or necessary with respect to any claim for indemnification by any Purchaser Indemnitee this Agreement and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;the Escrow Agreement.
(iv) give To ask, demand, ▇▇▇ for, ▇▇▇▇, recover and receive any all sums of money, debts, dues and all notices pursuant other demands whatsoever which may be due, owing and payable to such Seller under the terms of this Agreement or any other Transaction Document;and the Escrow Agreement.
(v) grant To negotiate, defend and settle all claims asserted by, and to resolve all disputes with, the Buyer or other Indemnified Parties with respect to this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby, including, without limitation, those arising in connection with any consentclaim for indemnification, approval or waiver under this Agreement or and to pay such persons any other Transaction Document;amounts due with respect to such claims.
(vi) make To receive all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers notices under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;Escrow Agreement.
(xvii) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of To make any items of disagreement related thereto other decision or approval thereof, election or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon take any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser such Seller relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination subject matter of this Agreement. The Sellers’ Representative shall be , the only person authorized to take any action so required, authorized or contemplated by this Escrow Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or and the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller hereby and its heirs, representatives, successors and permitted assignsthereby.
(b) The grant of authority provided for in this Section 11.18: (i) This appointment is coupled with an interest and is being grantedirrevocable until such time as all claims asserted by, in partand disputes with, as an inducement the Buyer or other Indemnified Parties have been finally satisfied, waived or otherwise resolved, except that a successor or successors may be appointed pursuant to Section 9.2(d) hereof. Subject to the Parties terms and conditions hereof, any and all action taken by the Sellers' Representative with respect to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will Escrow Agreement shall be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras each Seller.
(c) If Each Seller agrees to hold the Sellers’ ' Representative free and harmless from any and all loss, cost, claim, expense, damage or its successors liability which he may incur or sustain as a result of any action taken by him in good faith pursuant to his appointment as agent and permitted assignsattorney-in-fact under this Agreement and the Escrow Agreement.
(d) The appointment of the Sellers' Representative as attorney-in-fact hereunder shall be effective until the last date upon which all claims for indemnification under Section 9.1 hereof have been resolved or the time for bringing any such claims has expired; and all disputes involving Buyer, as the case may be, advise Company or any of the Hatteras Sellers that it is unavailable regarding any of the matters subject to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principalsindemnity have been resolved; provided, however, that, unless that in the successor Sellers’ Representative is a Principal, event of the appointment death or incapacity of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ ' Representative, the executor(s) of the Sellers’ ' Representative's estate, or the Sellers' Representative's legal guardian, shall succeed to the duties of the Sellers' Representative shall have no liability tohereunder, and shall not be liable act as attorney-in-fact and representative for the Sellers as if he were appointed attorney-in-fact and representative hereunder on the date of such death or incapacity. At any Losses oftime, any third Person, any Party or to any Indemnified Party Sellers holding in connection with any obligations, actions or failure to act the aggregate 80% of the Shares may by written notice to the Buyer and the other Sellers remove the Sellers’ ' Representative under this Agreement or otherwise and appoint a new Sellers' Representative in respect of this Agreement or the transactions contemplated herebyhis place.
Appears in 1 contract
Sources: Stock Purchase Agreement (Concord Communications Inc)
Sellers’ Representative. (a) Each By execution of this Agreement, each of Sellers, without any further action on the Hatteras Sellers hereby part of any such Seller, shall be deemed to have irrevocably constitutes, designates consented to the appointment of Synterra Capital Management LLC as Representative of each such Seller and appoints, authorizes and empowers as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, to serve as are requiredthe sole and exclusive representative of such Seller, authorized or contemplated by with respect to all matters set forth in this Agreement and the other Transaction Documents Documents, such service to be without compensation except for the reimbursement by Sellers of out-of-pocket expenses and indemnification specifically provided in this Agreement. Representative has accepted such designation as of the transactions contemplated hereby date of this Agreement. Representative is unconditionally and therebyirrevocably authorized, which includes directed, and empowered by each Seller to take any action Representative deems advisable and in furtherance of the foregoing, and each Seller agrees to take all actions requested by Representative that Representative deems to be in furtherance of the foregoing, and not to take any action Representative deems not to be in furtherance of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, Representative shall have no duties or responsibilities solely in his capacity as Representative except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations, or liabilities on behalf of any Seller shall otherwise exist against Representative.
(b) Representative as the exclusive agent, proxy, and attorney-in-fact for each of Sellers, for all purposes specified in this Agreement, shall be entitled to take all actions on behalf of each such Seller in connection with this Agreement, including full power and authority on such Seller’s behalf to:
: (i) agree to execute and deliver any amendments to this Agreement or the other Transaction Documents; (ii) take all documents actions which Representative considers necessary or desirable to carry out in connection with the intent defense, pursuit or settlement of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect determinations AmericasActive:13598183.18 relating to any claim claims for indemnification by hereunder or thereunder, including (A) determinations to ▇▇▇, defend, negotiate, settle, and compromise any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give for indemnification made by or against, and receive any and all notices other disputes with, Purchaser pursuant to this Agreement or any of the other Transaction Document;
Documents, and (B) determinations to authorize delivery to Purchaser of the proceeds in the Escrow Account or any portion thereof, in satisfaction of any claims; (iii) accept and receive notices to such Seller pursuant to this Agreement; (iv) settle any disputes regarding the Net Working Capital adjustment and Final Closing Statement pursuant to Section 1.5; (v) grant engage and employ agents and representatives and to incur such other expenses as Representative shall deem necessary or prudent in connection with the administration of the foregoing; and (vi) take all other actions and exercise all other rights which Representative considers necessary or appropriate in connection with this Agreement. All decisions and acts by Representative shall be binding upon all of Sellers and no Seller shall have the right to object, dissent, protest, or otherwise contest the same.
(c) EACH SELLER ACKNOWLEDGES THAT IT IS ITS EXPRESS INTENTION TO HEREBY GRANT A DURABLE POWER OF ATTORNEY (WHICH POWER OF ATTORNEY IS COUPLED WITH AN INTEREST) UNTO REPRESENTATIVE WITH RESPECT TO ALL MATTERS RELATING HERETO.
(d) Representative is authorized to act on behalf of Sellers (and bind them) notwithstanding any consentdispute or disagreement between any Seller and any other Seller, approval and Purchaser shall be entitled to rely on any and all action taken by Representative without any Liability to, or waiver obligation to inquire of, any Seller. Purchaser is expressly authorized to rely on the genuineness of the signature of Representative and, upon receipt of any writing which reasonably appears to have been signed by Representative, Purchaser may act in good faith upon the same without any further duty of inquiry as to the genuineness of the writing.
(e) Representative shall promptly deliver to the applicable Seller any notice received by Representative on behalf of such Seller.
(f) Neither Representative nor any agent employed by Representative shall be liable to any Seller relating solely to the performance of Representative’s duties under this Agreement in its capacity as Representative for any errors in judgment, negligence, oversight, Breach of duty, or otherwise except to the extent it is finally determined in a court of competent jurisdiction that the actions taken or omitted by Representative in such capacity constituted fraud or were taken or not taken in bad faith. Representative shall be indemnified and held harmless by Sellers, jointly and severally, against all Losses paid or incurred in connection with any other Transaction Document;
(vi) make all other elections or decisions contemplated action to which Representative is made a party solely by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications reason of the fact that Representative was acting as Representative pursuant to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction DocumentsAgreement; provided, however, that no such failure Representative shall not be entitled to act on indemnification hereunder to the part extent it is finally determined in a court of competent jurisdiction that the Sellers’ actions taken or not taken by Representative constituted fraud or were taken or not taken in bad faith. Representative shall be deemed a waiver of such right protected against Sellers in acting upon any notice, statement, or interest of any Hatteras Seller or the Sellers’ certificate believed by Representative unless such waiver is in writing signed to be genuine and to have been furnished by the Sellers’ Representative;
(x) review the Preliminary Statement appropriate Person and provide notice in acting or refusing to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting act in good faith, including (A) to resolve a disputed claim for indemnification asserted by faith on any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsmatter.
(bg) The grant of authority provided for Notwithstanding anything in this Section 11.18: (i) is coupled with an interest 8.10, Representative’s protection and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation limitation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to Liability under this Section 11.17, may be exercised by Sellers’ 8.10 apply only to Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ such and not in its capacity as a Seller or otherwise. Nothing in this Section 8.10 shall limit Representative’s obligations to Purchaser or any Purchaser Indemnitee hereunder or under any document, the Sellers’ Representative shall have no liability toagreement, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party other instrument executed or delivered in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.herewith. AmericasActive:13598183.18
Appears in 1 contract
Sellers’ Representative. (a) Each For purposes of this Agreement, the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers designate the Sellers’ Representative to serve as the sole and exclusive representative of the Sellers with respect to those provisions of this Agreement that contemplate action by the Sellers’ Representative.
(b) The Sellers’ Representative is hereby constituted and each successor appointed in accordance with Section 11.18(c)) as its, his or her true agent and lawful attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras other Sellers for distribution with respect to the Hatteras Sellers;
(ix) to enforce and protect the rights performance of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers his or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by her duties as the Sellers’ Representative;
(x) review . This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the Preliminary Statement and provide notice to Purchaser under Section 3.6 death, disability, incompetence, bankruptcy, or insolvency of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this AgreementSeller. The Sellers’ Representative shall be promptly deliver to each Seller any notice received by the only person authorized to take any action so required, authorized or contemplated by Sellers’ Representative concerning this Agreement by any Hatteras Seller and, without Agreement. Without limiting the generality of the foregoing, Purchaser the Sellers’ Representative has full power and authority, on behalf of each Seller and such Seller’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Sellers in connection herewith; (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive service of process in connection with any claims under this Agreement; (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; and (vi) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf of the Sellers in connection with this Agreement.
(c) Service by the Sellers’ Representative shall be required to provide notices to without compensation except as otherwise agreed in writing by the Hatteras Sellers pursuant to this Agreement solely to and for the reimbursement by the Sellers of out-of-pocket expenses and indemnification specifically provided herein.
(d) The Sellers’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations, or liabilities on behalf of any Seller shall otherwise exist against the Sellers’ Representative. The Sellers’ Representative shall not be each Hatteras Seller’s agent for service of process with respect liable to any disputes regarding or arising out Seller relating to the performance of the Sellers’ Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty, or otherwise except to the transactions contemplated hereby. Any action extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Sellers’ Representative constituted actual fraud or were taken or not taken in bad faith. The Sellers’ Representative shall be indemnified and held harmless by the name Sellers against all losses, including costs of defense, paid or on behalf of any Hatteras Seller incurred in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirsaction, representativessuit, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being grantedproceeding, in part, as an inducement or claim to which the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting is made a party by signing as reason of the fact that the Sellers’ Representative of any Hatteras Seller.
(c) If was acting as the Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable pursuant to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principalsthis Agreement; provided, however, that, unless that the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall not be subject entitled to indemnification hereunder to the prior written consent extent it is finally determined in a court of Purchaser (competent jurisdiction by clear and convincing evidence that the actions taken or not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to taken by the Sellers’ Representative constituted actual fraud or were taken or not taken in bad faith.
(e) The Purchaser and the Parent shall be deemed entitled to include rely upon any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until actions taken by the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other duly authorized action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under on behalf of each Seller with respect to any matters set forth in this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sellers’ Representative. (ai) Each The holders of the Hatteras Sellers hereby Company Capital Stock, the Senior Secured Lender and the Second Lien Lender (the “Seller Parties”) have irrevocably constitutes, designates and appoints, authorizes and empowers appointed the Sellers’ Representative (as the agent, proxy and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfor such Seller Party for all purposes of this Agreement, with including full power and authority on such party’s behalf (a) to consummate the transactions contemplated herein, (b) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of substitution or resubstitutionthis Agreement, (c) to perform all such acts execute and deliver any instruments as may be necessary in connection with the consummation of the transactions contemplated hereby, (or e) to omit from taking any action), execute and deliver on behalf of each such Hatteras Seller, as are required, authorized Seller Party any amendment or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant waiver relating to this Agreement or any Ancillary Agreement, (f) to take all other Transaction Document;
actions to be taken by or on behalf of the Seller Parties in connection herewith, (vg) grant to negotiate, settle, compromise and otherwise handle all claims made by any consentindemnified party pursuant to Section 7A hereof and (h) to do each and every act and exercise any and all rights which a Seller Party is, approval or waiver such Seller Parties collectively are, permitted or required to do or exercise under this Agreement or any other Transaction Document;Ancillary Agreement.
(viii) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
Buyer will be entitled to: (viii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder rely on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative or any successor thereto as having full power and authority to make all decisions and take all actions relating to the Seller Parties’ respective rights, obligations and remedies under this Agreement or the Transaction Documents; providedincluding to receive and make payments, howeverto receive and send notices, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare receive and deliver the Preliminary Statement documents, to Purchaser exercise, enforce or choose waive rights or conditions, to allow the Closing Statement give releases and discharges and to be deemed the Preliminary Statement defend against indemnification claims of Buyer Parties; and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xiii) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated deal only with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faithrespect of all matters arising under this Agreement, including to receive and make payments, to receive and send notices (A) including notices of termination), to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant receive and deliver documents, to Article Xexercise, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel enforce or other advisors in furtherance of that defense;
(xiv) pursue waive rights or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Documentconditions, and to amend give releases and discharges. In no event shall Buyer be held responsible or supplement liable for the application or allocation of any of the foregoing. All of the indemnities, immunities and powers granted monies paid to the Sellers’ Representative under this Agreement by Buyer, and Buyer shall survive be entitled to rely upon any notice provided to them by the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative within the scope of any Hatteras Sellerits authority.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Chase Corp)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the designate Sellers’ Representative (to execute any and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), documents on behalf of each such Hatteras SellerSellers, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and take any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices actions on behalf of Sellers which may be required pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this the Escrow Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications in order to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and consummate the Transaction Documents and to refrain from enforcing any right of perform their obligations hereunder and thereunder before, at or following the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoingClosing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process have the full and exclusive authority to (i) agree with Buyer with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken matter deemed necessary by Sellers’ Representative in connection with this Agreement or the name Escrow Agreement calling for the agreement of or Sellers, give and receive notices on behalf of any Hatteras Seller Sellers, and act on behalf of Sellers in connection with any matter arising as to which Sellers are or may be obligated under this Agreement or the Escrow Agreement, all in accordance the absolute discretion of Sellers’ Representative, (ii) execute and deliver all documents contemplated by this Agreement or the Escrow Agreement, and (iii) take all actions necessary or desirable in connection with this the defense or settlement of any indemnification claims pursuant to Section 11.18 9.1 and performance of obligations under Article 2, including to withhold funds for satisfaction of expenses or other liabilities or obligations; provided, however, that Sellers’ Representative shall be binding upon not (A) without the approval of Sellers with a majority of the Prorata Share (1) admit Sellers’ obligation to indemnify an Indemnitee or (2) agree to any indemnity payment (whether or not in settlement of litigation), or (B) without the approval of any Seller, consent to any injunction against such Hatteras Seller and its heirs, representatives, successors and permitted assignsSeller.
(b) The grant of authority provided for in this Subject to Section 11.18: (i) is coupled with an interest and is being granted8.7(a), in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised decisions by Sellers’ Representative acting by signing within the scope of the authority granted pursuant to this Section, including decisions made as the Indemnitor’s Representative pursuant to Section 9.5, shall be binding upon all Sellers, and no Seller shall have the right to contest the same. Sellers shall cooperate with Sellers’ Representative of and any Hatteras Seller.
(c) If accountants, attorneys or other agents whom he may retain to assist in carrying out his duties hereunder. Sellers’ Representative may communicate with any Seller or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties any other Person concerning his responsibilities hereunder, within thirty (30) days of notice of such advice, an alternative but he is not required to do so. Sellers’ Representative will be appointed by has a duty to serve in good faith the remaining Principals; providedinterests of Sellers and to perform his designated role under this Agreement, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the but Sellers’ Representative shall have no financial liability towhatsoever to any Person relating to his service hereunder (including any action taken or omitted to be taken), and except that he shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to harm which he causes by an act of the bad faith or willful misconduct. Sellers shall reimburse Sellers’ Representative for all costs and expenses, including reasonable professional fees, incurred and shall indemnify and hold harmless Sellers’ Representative against any loss, expense (including attorney’s fees incurred pursuant to Section 9.5) or other liability arising out of his service as Sellers’ Representative under this Agreement Agreement, other than for harm caused by an act of bad faith or otherwise willful misconduct. Sellers’ Representative may resign at any time by notifying in respect writing Buyer and Sellers. If Sellers’ Representative resigns, Sellers with a majority of this Agreement or the transactions contemplated herebyProrata Share may elect a successor and may establish compensation for such successor. Notice of election of a new Sellers’ Representative shall be given to Buyer. Such successor Sellers’ Representative shall exercise the rights and powers of and be entitled to the indemnity, reimbursement and other benefits of, the original Sellers’ Representative.
Appears in 1 contract
Sellers’ Representative. (a) Each By their execution of this Agreement, the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoint the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itsthe representative, his or her true and lawful attorney-in-fact and agent, agent of Sellers in connection with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby by the Transaction Agreements and therebyin any Action involving the Transaction Agreements. In connection therewith, which includes the Sellers’ Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate, and shall have the power and authority to, in each case, in the name and on behalf of Sellers:
(i) execute and deliver act for Sellers with regard to all documents necessary or desirable matters pertaining to carry out the intent of this Agreement and any other Transaction DocumentAgreements;
(ii) determine whether act for Sellers in any Action with regard to all matters pertaining to the conditions to Closing in Article VII have been satisfiedTransaction Agreements;
(iii) serve as execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative deems necessary or appropriate in its sole discretion deems appropriateconnection with the consummation of the transactions contemplated by the Transaction Agreements (including waiving any closing conditions on behalf of Sellers or deeming any closing condition satisfied);
(iv) receive funds, make payments of funds, and give and receive any and all notices pursuant to this Agreement or any other Transaction Documentreceipts for funds;
(v) grant do or refrain from doing, on behalf of Sellers, any consentfurther act or deed that the Sellers’ Representative deems necessary or appropriate in the Sellers’ Representative’s discretion relating to the subject matter of the Transaction Agreements, approval or waiver under this Agreement or any other Transaction Documentin each case as fully and completely as Sellers could do if personally present;
(vi) make give and receive all other elections notices required to be given or decisions contemplated received by this Agreement or any other Sellers under the Transaction DocumentAgreements;
(vii) approve waiversagree to, clarifications or post-negotiate and/or comply with the determination of the Closing modifications Date Statement and the Adjustment Amount pursuant to this Agreement or any other Transaction DocumentSection 2.6;
(viii) receiveagree to, negotiate, enter into settlements and enforce compromises and/or comply with arbitration awards and court orders with respect to claims made by the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;Acquiror under Article VII; and
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for receive service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising Actions under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assignsthe Transaction Agreements.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as shall act for the Sellers on all of the matters set forth in the Transaction Agreements in the manner the Sellers’ Representative believes to be in the best interest of any Hatteras Seller.
(c) If the Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor . The Sellers’ Representative is a Principal, authorized to act on behalf of the appointment of such successor Sellers notwithstanding any dispute or disagreement among the Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include In taking any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative action as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Sellers’ Representative reasonably believes to be authorized thereunto.
(c) For all purposes of this Agreement:
(i) the Acquiror shall be entitled to rely conclusively, without any further inquiry or investigation, on the instructions and decisions of the Sellers’ Representative as to the settlement of any disputes or claims under the Transaction Agreements, or any other actions required or permitted to be taken by the Sellers’ Representative hereunder, and no party shall have no liability toany cause of action against the Acquiror for any action taken by the Acquiror in reliance upon the instructions or decisions of the Sellers’ Representative;
(ii) the provisions of this Section 2.7(c)(ii) are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; and
(iii) this Section 2.7(c)(iii) shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, assignees and successors of each Seller, and any references in this Agreement to a Seller shall mean and include the successors to the rights of each applicable Seller hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(d) Each of the Sellers agrees that the Sellers’ Representative shall not be liable for any Losses of, any third Person, any Party damages while acting in good faith and in the exercise of its reasonable judgment and arising out of or to any Indemnified Party in connection with any obligations, actions the acceptance or failure to act administration of the Sellers’ Representative its duties under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Tronc, Inc.)
Sellers’ Representative. (a) Each DRS Seller is hereby appointed to act as the sole agent, proxy, attorney-in-fact and representative for the benefit of, and on behalf of, the Sellers and their successors and assigns in connection with and to facilitate the consummation of the Hatteras Transactions (the “Sellers’ Representative”) and the Sellers’ Representative, by its execution hereof, agrees to serve in such capacity.
(b) In its capacity as the Sellers’ Representative, it shall have the power and authority to take such action as it determines in its sole and absolute discretion appropriate, for the benefit of, and on behalf of, the Sellers, to exercise such rights, power and authority as are authorized, delegated and granted to the Sellers’ Representative, including:
(i) to give and receive notices and communications contemplated by this Agreement or as may be necessary to consummate the Transactions;
(ii) to make, execute, acknowledge and deliver any and all supplements, amendments, waivers or modifications and all certificates, consents and other documents contemplated by this Agreement or as may be necessary to consummate the Transactions;
(iii) to take or refrain from taking any actions on the behalf of the Sellers hereby irrevocably constitutes(whether by negotiation, designates settlement, litigation or otherwise) to resolve, settle or consent to liability with respect to all matters and appointsdisputes arising out of or related to this Agreement, authorizes and empowers including but not limited to, the control by the Sellers’ Representative of any indemnification claim on the behalf of any Indemnifying Party pursuant to Article VIII (Indemnification) and the performance or enforcement of the obligations, duties and rights pursuant to this Agreement;
(iv) to engage attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Sellers’ Representative in the performance of its duties under this Agreement, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons;
(v) to collect and receive on behalf of and deliver to any Seller any amounts due to such Seller under this Agreement and to allocate the Closing Purchase Price among the Sellers (after reduction for any amounts payable in respect of Company Options, Company Warrants and Company Phantom Stock, if any, as determined by the Sellers’ Representative);
(vi) to perform all of the Sellers’ Representative’s duties with respect to the determination of the Working Capital Overage or Working Capital Underage pursuant to Section 1.6 (Adjustment of Purchase Price) and the Post-Closing Adjustment pursuant to Sections 1.8 (Post-Closing Statements), 1.9 (Reconciliation of Post-Closing Statements) and 1.10 (Post-Closing Adjustment for Purchase Price Adjustment Amount);
(vii) to waive satisfaction of the conditions to the Sellers’ obligations to consummate the Closing pursuant to Sections 7.1 (Mutual Conditions) and 7.2 (Additional Conditions to Buyer’s Obligations);
(viii) to terminate or consent to the termination of this Agreement pursuant to Section 10.1(a) (Termination);
(ix) to amend this Agreement pursuant to Section 11.1 (Amendments; Extension; Waiver); and
(x) to take all actions necessary or appropriate in the sole discretion of the Sellers’ Representative for the accomplishment of the foregoing.
(c) By its execution hereof, each successor appointed in accordance with Section 11.18(c)Seller (other than the Sellers’ Representative) hereby appoints the Sellers’ Representative as its, his or her such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution or and resubstitution, to perform in such Seller’s name, place and stead, in any and all such acts (or to omit from taking any action)capacities, on behalf of each such Hatteras Sellerin connection with the Transactions, as are requiredand authorizes, authorized or contemplated by this Agreement delegates and the other Transaction Documents grants unto said attorney-in-fact and the transactions contemplated hereby and thereby, which includes the agent full power and authority to:
to take all actions that this Agreement provides are to be taken by the Sellers’ Representative. The grant of authority provided for herein (i) execute is coupled with an interest and deliver all documents necessary shall be irrevocable and survive the death, incompetency, bankruptcy or desirable liquidation of any Seller, except as required by Applicable Law, and (ii) shall survive the consummation of the Transactions or termination of this Agreement, and any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Sellers’ Representative pursuant to carry out the intent authority granted in this Agreement shall be absolutely and irrevocably binding on each Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Seller’s individual capacity and notwithstanding any contrary action of or direction from such Seller. The power of attorney granted pursuant to this Section 11.7(c) (Sellers’ Representative) shall not revoke any power of attorney that has been previously granted by the undersigned to any other Person. Without limiting the foregoing, for clarity, the power of attorney granted pursuant to this Section 11.7(c) (Sellers’ Representative) shall not be deemed to be revoked by any power of attorney that may be granted by the undersigned to any other Person after the date hereof, unless any such subsequent power of attorney specifically refers to this power of attorney by the date of execution of this power of attorney by the undersigned.
(d) Except as otherwise expressly provided for in Article VIII (Indemnification), until such time as the Closing shall have occurred, (i) neither the Sellers’ Representative nor any other Seller shall have any liability to Buyer for any breach or default under this Agreement by any other Seller, and (ii) each Seller, including the Sellers’ Representative, shall be individually and not jointly liable for any breach or default under this Agreement
(e) In connection with this Agreement and any other Transaction Document;
(ii) determine whether the conditions instrument, agreement or document relating hereto or thereto and in exercising or failing to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and exercise all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or powers conferred upon the Sellers’ Representative under this Agreement hereunder, (i) the Sellers’ Representative shall incur no responsibility whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with any such other agreement, instrument or document by the Transaction Documents; providedSellers’ Representative, however, that no such excepting only responsibility for any act or failure to act on by the part of Sellers’ Representative which represents willful misconduct or gross negligence and (ii) the Sellers’ Representative shall be deemed a waiver entitled to rely on the advice of such right counsel, public accountants or interest other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of any Hatteras Seller or the Sellers’ Representative unless pursuant to such waiver advice shall in no event subject the Sellers’ Representative to liability to any Seller, except where such reliance is a result of the Sellers’ Representative’s willful misconduct or gross negligence. Each Seller shall indemnify, in writing signed proportion to the portion of the Purchase Price paid to such Seller, the Sellers’ Representative against all Losses, including the amount of any judgment against the Sellers’ Representative, of any nature whatsoever (including any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any Proceeding), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Sellers’ Representative hereunder, the assumption of the defense of any indemnification claim by the Sellers’ Representative;
(x) review Representative on the Preliminary Statement and provide notice to Purchaser under Section 3.6 behalf of any items of disagreement related thereto Indemnifying Party in accordance with Article VIII (Indemnification) or approval thereof, Article IX (Tax Matters) or if Purchaser does otherwise in its capacity as the Sellers’ Representative. The foregoing indemnification shall not deliver apply in the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution event of any dispute with respect to action or proceeding which finally adjudicates the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate liability of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services hereunder for its willful misconduct or gross negligence. In the event of any indemnification under this clause (e), upon written notice from the Sellers’ Representative to the Sellers as to the existence of a deficiency toward the payment of any such indemnification amount, each Seller shall promptly deliver to the Sellers’ Representative;Representative full payment of its, his or her ratable share of the amount of such deficiency, in proportion to such Seller’s portion of the Purchase Price paid to such Seller.
(xiiif) resolve Each of the Sellers hereby agrees to execute such agreements and other documents and use reasonable best efforts to perform or cause to be performed such further acts as may be reasonably requested or otherwise defend any Purchaser Indemnitee as described herein, acting deemed necessary by the Sellers’ Representative in good faithconnection with its performance of its obligations hereunder, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement holdback or allocation of the Purchase Price among the Sellers or the Transaction Documents; and
(xv) perform determination of the amount of any contributions required to be made by each such act Seller in connection with the obligations of the Sellers and thing whatsoever that the Sellers’ Representative may be under Section 1.9 (Reconciliation of Post-Closing Statements), Article VIII (Indemnification), Article IX (Tax Matters) or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement Indemnification and any other Transaction Document, and to amend or supplement any of the foregoing. Cooperation Agreement.
(g) All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Securities Purchase Agreement (Duane Reade Holdings Inc)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutesconstitutes and appoints GA Escrow, designates and appointsLLC, authorizes and empowers a Delaware limited liability company (the "Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c' Representative")) as its, his or her the true and lawful agent and attorney-in-fact of the undersigned with respect to this Agreement and agentthe Escrow Agreement and the transactions contemplated thereby and thereby, with full power of substitution and resubstitution (and such power of attorney being deemed to be an irrevocable power coupled with an interest) to act on behalf of such Seller in any litigation or resubstitutionarbitration (including, without limitation, any threat thereof) involving this Agreement or the Escrow Agreement. As part of the power and authority granted under this Section 12.15 and not in limitation, each Seller specifically consents to the Sellers' Representative's exercise of the power (i) to bring, defend and/or resolve any Claim made pursuant to Article 9, (ii) to agree to, negotiate, enter into settlements and compromises of, to perform all bring suit or seek arbitration and to comply with orders of courts and awards of arbitrators with respect to such acts Claims, (or iii) to omit from taking any action)execute and deliver, on behalf of each such Hatteras Seller, as are requiredthe Escrow Agreement, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement any amendment thereto and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individualrelated agreements, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive to take any and all notices actions required to be taken pursuant to this Agreement or any other Transaction Document;
Section 2.3 and (v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make to take all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce actions necessary in the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part judgment of the Sellers’ ' Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or for the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality accomplishment of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers including, without limitation, pursuant to this Agreement, the Escrow Agreement solely or otherwise. All authority conferred or agreed to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of conferred in this Agreement or and every obligation of the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall undersigned hereunder will be binding upon such Hatteras Seller and its the successors, assigns, heirs, representativesexecutors, successors administrators, trustees in bankruptcy and permitted assigns.
(b) The grant legal representatives of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement Sellers and will not be irrevocable affected by, and survive will survive, the death, incompetencyincapacity or bankruptcy of the Sellers. Parent, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a PrincipalPurchaser, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include Escrow Agent and any duly appointed successor Sellers’ Representative. Purchaser other person may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c)' Representative, continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions action of each Hatteras Seller the undersigned in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes Agreement and the other Parties Escrow Agreement.
(b) The Sellers' Representative shall incur no liability to the parties hereto with respect to disregard any notice delivered action or inaction taken by the Sellers' Representative, except its own willful misconduct or gross negligence, nor any other action taken or suffered by them in reliance upon any Hatteras Seller pursuant note, direction, instruction, consent, statement or other documents believed by them to this Agreement except for be genuinely and duly authorized. In the event of the death or permanent disability of the Sellers’ ' Representative, or its resignation as the Sellers' Representative, a successor Sellers' Representative shall be elected by a majority vote of the Sellers (based upon the percentages set forth on Schedule 9.6). The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ ' Representative shall have no liability tofull power and authority to represent the Sellers, and shall not be liable for any Losses ofwith respect to all matters arising under this Agreement, the Escrow Agreement, any third Personamendment thereto and any related agreements and all actions taken by the Sellers' Representative thereunder shall be binding upon the undersigned, any Party or as if expressly confirmed and ratified in writing by the Sellers.
(c) Each of the Sellers agrees to any Indemnified Party reimburse the Sellers' Representative for such Sellers' pro rata portion (based upon the percentages set forth on Schedule 9.6) of all out-of-pocket expenses, including reasonable attorneys' and accountants' fees and expenses, incurred by the Sellers' Representative in connection with the administration or enforcement of or the preservation of any obligations, actions or failure to act rights of the Sellers’ Representative Sellers under this Agreement, the Escrow Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyany other related agreements.
Appears in 1 contract
Sellers’ Representative. (a) Each For purposes of this Agreement, the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers designate the Sellers’ Representative to serve as the sole and exclusive representative of the Sellers with respect to those provisions of this Agreement that contemplate action by the Sellers’ Representative.
(b) The Sellers’ Representative is hereby constituted and each successor appointed in accordance with Section 11.18(c)) as its, his or her true agent and lawful attorney-in-fact for and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras other Sellers for distribution with respect to the Hatteras Sellers;
(ix) to enforce and protect the rights performance of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers his or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by her duties as the Sellers’ Representative;
(x) review . This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the Preliminary Statement and provide notice to Purchaser under Section 3.6 death, disability, incompetence, bankruptcy, or insolvency of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this AgreementSeller. The Sellers’ Representative shall be promptly deliver to each Seller any notice received by the only person authorized to take any action so required, authorized or contemplated by Sellers’ Representative concerning this Agreement by any Hatteras Seller and, without Agreement. Without limiting the generality of the foregoing, Purchaser the Sellers’ Representative has full power and authority, on behalf of each Seller and such Seller’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Sellers in connection herewith; (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive service of process in connection with any claims under this Agreement; (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; and (vi) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf of the Sellers in connection with this Agreement.
(c) Service by the Sellers’ Representative shall be required to provide notices to without compensation except as otherwise agreed in writing by the Hatteras Sellers pursuant to this Agreement solely to and for the reimbursement by the Sellers of out-of-pocket expenses and indemnification specifically provided herein.
(d) The Sellers’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations, or liabilities on behalf of any Seller shall otherwise exist against the Sellers’ Representative. The Sellers’ Representative shall not be each Hatteras Seller’s agent for service of process with respect liable to any disputes regarding or arising out Seller relating to the performance of the Sellers’ Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty, or otherwise except to the transactions contemplated hereby. Any action extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Sellers’ Representative constituted actual fraud or were taken or not taken in bad faith. The Sellers’ Representative shall be indemnified and held harmless by the name Sellers against all losses, including costs of defense, paid or on behalf of any Hatteras Seller incurred in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirsaction, representativessuit, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being grantedproceeding, in part, as an inducement or claim to which the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting is made a party by signing as reason of the fact that the Sellers’ Representative of any Hatteras Seller.
(c) If was acting as the Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable pursuant to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principalsthis Agreement; provided, however, that, unless that the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall not be subject entitled to indemnification hereunder to the prior written consent extent it is finally determined in a court of Purchaser (competent jurisdiction by clear and convincing evidence that the actions taken or not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to taken by the Sellers’ Representative constituted actual fraud or were taken or not taken in bad faith.
(e) The Purchaser shall be deemed entitled to include rely upon any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until actions taken by the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other duly authorized action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under on behalf of each Seller with respect to any matters set forth in this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sources: Equity Purchase Agreement (Diego Pellicer Worldwide, Inc)
Sellers’ Representative. (a) 12.1. Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers unconditionally appoints the Sellers’ Representative (as sole representative agent and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact to act on such Seller’s behalf for all purposes relating to this Agreement after Completion and agenteach agreement and document ancillary thereto, with full power of substitution or resubstitution, to perform all such acts including for the purposes of:
(or to omit from taking any action), a) accepting and giving notices on behalf of each such Hatteras Seller;
(b) making elections and granting any consent or approval on behalf of such Seller under this Agreement;
(c) approving and executing any document on behalf of such Seller to give effect to the release of any money then standing to the credit of the Escrow Account;
(d) defending, as are requirednegotiating, authorized compromising, settling and releasing on behalf of such Seller any rights and claims (including legal proceedings) which the Buyer may threaten or pursue in respect of any breach of, or right under, this Agreement or any other Transactional Document;
(e) confirming the allocation between the Sellers of the Contingent Consideration to be made under this Agreement;
(f) enforcing, negotiating, compromising, settling and releasing on behalf of such Seller any rights and claims (including legal proceedings and ADR) which he may have, threaten or pursue against the Buyer (or any other person) in respect of any breach of, or right under, this Agreement or any other Transactional Document or any Dispute;
(g) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Sellers (other than with respect to the payment of the Total Consideration) in accordance with the terms hereof and in the manner provided herein;
(h) taking any and all actions that may be necessary or desirable in connection with the payment by the Sellers of the costs and expenses incurred under this Agreement; and
(i) generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement and each agreement and document ancillary thereto to be performed by such Seller or the other Transaction Documents Sellers’ Representative.
12.2. Each Seller hereby irrevocably (by way of security for the performance of his obligations under this Agreement) appoints the Sellers’ Representative as its agent with full authority on his behalf and in the transactions contemplated hereby Seller’s name, as applicable, or otherwise, to do all acts and thereby, which includes the power and authority to:
(i) to execute and deliver all such documents necessary or desirable deeds as are required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required or convenient to carry out give effect to the intent matters described in clause 12.1.
12.3. The Sellers’ Representative shall act in good faith in accordance with what the Sellers’ Representative believes to be the best interests of the Sellers when exercising any power or authority conferred on under this clause 12.
12.4. Save in the event of fraud, any action undertaken or omitted by the Sellers’ Representative with the written approval of a Sellers’ Majority shall be conclusively deemed to be in accordance with the requirements of clause 12.3 provided that, for the avoidance of doubt, such approval shall not be necessary.
12.5. The Sellers’ Representative may resign at any time. The Sellers’ Representative may consult with any Seller to the extent a claim is threatened or pursued by the Buyer in respect of any breach of, or right under, this Agreement and or any other Transaction Document;Transactional Document and which specifically concerns any actual or alleged act or default of that Seller.
12.6. The Sellers may, by written notice signed by a Sellers Majority (ii) determine whether the conditions a “Change Of Sellers’ Representative Notice”), replace a resigning Sellers’ Representative or remove an incumbent Sellers’ Representative from such position and appoint another person to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims act as Sellers’ Representative in substitution thereof (a “New Sellers’ Representative”). A Change Of Sellers’ Representative Notice shall be effective only once a copy thereof has been served on both the incumbent Sellers’ Representative and the Buyer.
12.7. A New Sellers’ Representative so appointed shall, with effect from the time of its sole discretion deems appropriate;
(iv) give appointment, execute a deed of adherence in favour of the Sellers and receive any and all notices the Buyer pursuant to which it shall agree to adhere to, and be bound by, this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or as though named herein as the Sellers’ Representative and the parties agree that such substitute New Sellers’ Representative shall be conferred the rights, power and authorities (including as set out in this clause 12) of the Sellers’ Representative as set out in this Agreement and entitled to directly enforce the same (notwithstanding that it may not have initially been a signatory hereto). A copy of such deed of adherence shall be delivered to the Buyer at the same time as the Change Of Sellers’ Representative Notice is served thereon under clause 12.6.
12.8. If at any time a New Sellers’ Representative is appointed in accordance with clause 12.6, if required by the Buyer, the Sellers’ Representative hereby undertakes to do all such things as may be necessary to novate the Escrow Agreement from the previous Sellers’ Representative to the New Sellers’ Representative.
12.9. Any action taken or any exercise of powers under this Agreement by the Sellers’ Representative or any New Sellers’ Representative shall be binding on each Seller for the Transaction Documents; providedpurposes of this Agreement, howevershall be deemed to be done by each Seller, and the Buyer shall be entitled to assume that no such failure any action taken by the Sellers’ Representative or any New Sellers’ Representative whose appointment has been notified in accordance with this clause 14 is binding on all of the Sellers and the parties shall be entitled to act rely on the part same. The Buyer shall not be required to make further enquiries in respect thereof. The Buyer shall have no obligation to monitor or supervise the Sellers’ Representative or any New Sellers’ Representative. The Buyer shall not be liable to any of the Sellers for any action taken or omitted to be taken by the Sellers’ Representative or any New Sellers’ Representative.
12.10. All costs (including legal costs) and expenses (including Tax), in each case, of any nature whatsoever, of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed borne by the Sellers’ Representative;
(x) review Sellers in the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred proportions set out in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf column C of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; andtable in Schedule 1 (The Sellers).
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement12.11. The Sellers’ Representative shall be the only person authorized have no liability or obligation to take any action so required, authorized or contemplated on behalf of any Seller under the powers and authorities conferred on the Sellers’ Representative by this Agreement where such action may result in the Sellers’ Representative incurring any cost, expense or liability unless the Sellers’ Representative is satisfied with any arrangements made by any Hatteras Seller and(or on behalf of) the Sellers for the satisfaction or re-imbursement of such costs, without limiting expenses and liabilities.
12.12. Upon Completion, and subject to receipt by the generality Sellers’ Representative of the foregoingcash sum provided for in clause 3.3(a), Purchaser shall the Sellers’ Representative will retain an amount of [***] from such sum (the “Expense Fund”), which will be required to provide notices to used for the Hatteras Sellers purposes of paying directly, or reimbursing the Sellers’ Representative for, any third party expenses pursuant to this Agreement solely and the transactions contemplated hereby. The Sellers will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Sellers’ RepresentativeRepresentative any ownership right that they may otherwise have had in any such interest or earnings. The Sellers’ Representative shall will not be each Hatteras Seller’s agent liable for service any loss of process with respect to any disputes regarding principal of the Expense Fund other than as a result of its gross negligence or arising out of this Agreement or the transactions contemplated herebywilful misconduct. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by hold these funds separate from its corporate funds in a segregated client account, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to *** Certain information in this agreement has been omitted and filed separately with the remaining Principals; providedSecurities and Exchange Commission. [***] indicates that text has been omitted and is the subject of a confidential treatment request. its creditors in the event of bankruptcy. As soon as practicable following the completion of the Sellers’ Representative’s responsibilities, however, that, unless the successor Sellers’ Representative is a Principalwill distribute the balance of the Expense Fund to the Payments Administrator for further distribution to the Sellers. For tax purposes, the appointment of such successor Sellers’ Representative Expense Fund shall be subject to treated as having been received and voluntarily set aside by the prior written consent Sellers at the time of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ RepresentativeCompletion. The Parties acknowledge and parties agree that the Sellers’ Representative is not responsible for any tax withholding or reporting or acting as a party withholding agent or in any similar capacity in connection with the Expense Fund.
12.13. The Sellers’ Representative will incur no liability of any kind with respect to any action or omission by the Sellers’ Representative in connection with Sellers’ Representative’s services pursuant to this Agreement solely and any agreements ancillary hereto, except in the event of liability directly resulting from the Sellers’ Representative’s gross negligence or wilful misconduct. The Sellers’ Representative shall not be liable to any Seller as a result of any action or omission that is taken (or not taken) in good faith pursuant to the advice of external legal counsel in the proper performance of its role obligations under this Agreement. The Sellers will, severally and not jointly, on a pro rata basis equal to the portion of representative Total Consideration each such Seller is entitled to receive pursuant to this Agreement compared to the aggregate Total Consideration entitled to be received by all Sellers, indemnify, defend and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Sellers’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or wilful misconduct of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability towill reimburse the Sellers the amount of such Representative Loss to the extent attributable to such gross negligence or wilful misconduct. If not paid directly to the Sellers’ Representative by the Sellers, any such indemnified Representative Losses may be recovered by the Sellers’ Representative from (i) the funds in the Expense Fund, (ii) the amounts in the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Sellers, and shall (iii) from any Milestone Payments at such time as any such amounts would otherwise be distributable to the Sellers; provided, that while this section allows the Sellers’ Representative to be paid from the Expense Fund, the Escrow Amount and the Milestone Payments, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be liable for any Losses ofrequired to advance its own funds on behalf of the Sellers or otherwise. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, any third Person, any Party or the limitations on liability of the Sellers set forth elsewhere in this Agreement are not intended to any Indemnified Party in connection with any obligations, actions or failure be applicable to act of the indemnities provide to the Sellers’ Representative under this Agreement clause 12.13. The Sellers acknowledge and agree that the foregoing indemnities will survive the resignation or otherwise in respect removal of the Sellers’ Representative or the termination of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sources: License and Collaboration Agreement (Spring Bank Pharmaceuticals, Inc.)
Sellers’ Representative. (ai) Each The Sellers’ Representative is hereby designated by each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers to serve as the Sellers’ Representative (and each successor appointed with respect to the matters set forth in this Agreement in accordance with this Section 11.18(c2(h).
(ii) By the approval of this Agreement, each Seller hereby irrevocably constitutes and appoints the Sellers’ Representative as itsthe representative, his or her true and lawful attorney-in-fact and agent, with proxy, and attorney in fact for such Seller for all purposes set forth in this Agreement, including the full power and authority on such Seller’s behalf (i) to consummate the transactions contemplated herein; (ii) to pay costs and expenses incurred in connection with the negotiation and performance of substitution this Agreement (whether incurred on or resubstitutionafter the date hereof), including by using funds in the Representative Holdback Account; (iii) to perform pay, on the Sellers’ behalf, all costs, expenses and amounts for which Sellers are responsible under this Agreement (including Sellers’ Allocable Pre-Closing Taxes), including by using funds from the Representative Holdback Amount; (iv) to receive and disburse any funds owing to such acts Seller in accordance with this Agreement; (v) to endorse and deliver any certificates or instruments representing such Seller’s Shares and execute such further instruments of assignment for and on behalf of such Seller as Buyer shall request; (vi) to omit execute and deliver on behalf of such Seller any amendment or waiver hereto; (vii) (A) to negotiate and otherwise determine any post-Closing adjustments to the Purchase Price, (B) to dispute or refrain from taking any action)disputing, on behalf of each such Hatteras Seller, as are required, authorized or contemplated any amounts to be received by any Sellers under this Agreement and or any Ancillary Agreements or any claim made by the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of Buyer under this Agreement or any Ancillary Agreements, (C) to negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any Ancillary Agreements, and (D) to execute, on behalf of such Seller, any settlement agreement, release or other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) document with respect to any claim for indemnification by any Purchaser Indemnitee and such dispute or remedy; (viii) to resolve engage attorneys, accountants, agents or consultants on behalf of such claims as Sellers’ Representative Seller in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to connection with this Agreement or any other Transaction Document;
(v) grant agreement contemplated hereby and paying any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
fees related thereto; (ix) to enforce take all other actions to be taken by or on behalf of such Seller in connection herewith; (x) to retain the Representative Holdback Amount and protect the rights pay any expenses of the Hatteras Sellers under this Agreement and Company, the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative therefrom; (xi) give and accept communications and notices on behalf of the Sellers; (xii) to receive service of process on behalf of each Seller in connection with any claims under this Agreement, the Ancillary Agreements or any other related document or instrument; and (xiii) to do each and every act and exercise any and all rights which such Seller is permitted or required to do or exercise under this Agreement or the Transaction DocumentsAncillary Agreements. Each Seller agrees that such agency and proxy and the authority granted to Sellers’ Representative (A) are coupled with an interest, are therefore irrevocable without the consent of the Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of such Seller and (B) shall survive Closing. All decisions and actions by the Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Buyer shall be entitled to conclusively rely, without inquiry, on such appointment and the authority of the Sellers’ Representative and to treat the Sellers’ Representative as the duly appointed attorney-in-fact of each Seller and is hereby relieved from any liability to any Person for any acts done by it in reliance on the appointment and authority of the Sellers’ Representative hereunder. Notices given to the Sellers’ Representative in accordance with the provisions of this Agreement shall constitute notice to the Sellers for all purposes under this Agreement.
(iii) The Sellers’ Representative may resign from its capacity as the Sellers’ Representative at any time by prior written notice delivered to Sellers and Buyer. If there is a vacancy at any time in the position of the Sellers’ Representative for any reason, a successor Sellers’ Representative shall be appointed by the vote of Sellers whose aggregate Allocable Portions exceed fifty percent (50%).
(iv) Sellers’ Representative, in its capacity as Sellers’ Representative, shall have no liability to Buyer for any default under this Agreement or any Ancillary Agreement by any Seller, including any failure to make deliveries required under Section 2(d).
(v) Each Seller shall be responsible for, and promptly upon the written request of Sellers’ Representative shall pay to or as directed by Sellers’ Representative, its allocable portion of any fees and expenses reasonably incurred by Sellers’ Representative in connection with this Agreement and any Ancillary Agreement; provided, however, that no the Sellers’ Representative shall first obtain such fees and expenses from any remaining portion of the Representative Holdback Account.
(vi) Each Seller hereby severally, for itself only and not jointly and severally, agrees to indemnify and hold harmless the Sellers’ Representative against its Allocable Portion of all fees, costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Sellers’ Representative in connection with any action, suit or proceeding to which the Sellers’ Representative is made a party by reason of the fact it is or was acting as the Sellers’ Representative pursuant to the terms of this Agreement.
(vii) The Sellers’ 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 Sellers’ 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 Sellers’ Representative shall not be relieved of any liability imposed by law for willful misconduct. The Sellers’ Representative shall not be liable to the Sellers for any apportionment or distribution of payments made by the Sellers’ Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Seller to whom payment was due, but not made, shall be to recover from other Sellers any payment in excess of the amount to which they are determined to have been entitled. The Sellers’ Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Sellers’ Representative nor any agent employed by it shall incur any liability to any Seller by virtue of the failure to act on the part or refusal of the Sellers’ Representative shall be deemed a waiver for any reason to consummate the transactions contemplated hereby or relating to the performance of such right its other duties hereunder, except for actions or interest of any Hatteras Seller omissions constituting fraud or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;bad faith.
(xviii) review The decision of each Seller to consummate the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party transactions contemplated pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement has been made by such Seller independently of any other Seller and independently of any information, materials, statements or opinions as to the Transaction Documents; and
(xv) perform each such act terms and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent conditions of this Agreement and any Ancillary Agreement that may have been made or given by Sellers’ Representative, any other Transaction DocumentSeller or by any agent, employee or other representative of Sellers’ Representative, or any other Seller, and to amend neither Sellers’ Representative nor any Seller or supplement any of the foregoing. their respective agents, employees or other representatives shall have any liability to any other Seller (or any Person) relating to or arising from any such information, materials, statement or opinions, except as expressly provided in a written agreement, if any, between or among Sellers.
(ix) All of the indemnities, immunities and powers granted to the Sellers’ Representative by the Sellers under this Agreement shall survive the Closing Date or and/or any termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each Without any further act of the Hatteras Sellers hereby irrevocably constitutesSellers, designates and appoints, authorizes and empowers the Sellers’ Representative (is hereby appointed, authorized and each successor appointed in accordance with Section 11.18(c)) empowered to act as itsthe representative, his or her true for the benefit of Sellers, and lawful as the exclusive agent and attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act on behalf of each such Hatteras Seller, in connection with and to facilitate the consummation of the transactions contemplated under this Agreement and any Transaction Document, including pursuant to the Escrow Agreement, which shall include the power and authority:
(i) to execute and deliver the Escrow Agreement, the Assignment Agreement and any other Transaction Documents (with such modifications or changes therein as are requiredto which Sellers’ Representative, authorized in its sole discretion, shall have consented), including directly on behalf of one or contemplated by more Sellers, and to agree to such amendments or modifications thereto (including, for the avoidance of doubt, this Agreement) as Sellers’ Representative, in its reasonable discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and therebythereby as Sellers’ Representative, which includes the power and authority to:
(i) execute and deliver all documents in its reasonable discretion, may deem necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfieddesirable;
(iii) serve as to use the named party (Representative Expense Amount to satisfy costs, expenses and/or Liabilities of Sellers’ Representative or Sellers in connection with matters related to this Agreement and/or the Transaction Documents, with any balance of the Representative Expense Amount not in his individual, but solely in his representative capacity) with respect used for such purposes to any claim for indemnification by any Purchaser Indemnitee be disbursed and paid to resolve Sellers at such claims time as Sellers’ Representative determines in its sole reasonable discretion deems appropriatethat no additional such costs, expenses and/or Liabilities shall become due and payable;
(iv) give to collect and receive all moneys and other proceeds and property payable to Sellers’ Representative from the Adjustment Escrow Account, the Indemnity Escrow Account, the Indemnified Tax Escrow Account or otherwise as described herein, and, subject to any applicable withholding retention Laws, and all notices pursuant net of any out-of-pocket expenses incurred by Sellers’ Representative (including any Company Transaction Expenses paid by Sellers’ Representative in excess of the Representative Expense Amount), Sellers’ Representative shall disburse and pay the same to this Agreement or any other Transaction DocumentSellers;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights and interests of Sellers and to enforce and protect the Hatteras Sellers rights and interests of their Representatives arising out of or under or in any manner relating to this Agreement and the Transaction Documents Escrow Agreement, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein, and to take any and all actions which Sellers’ Representative believes are necessary or appropriate under the Escrow Agreement and/or this Agreement for and on behalf of Sellers, including asserting or pursuing any claim, action, Proceeding or investigation against Buyer or its Affiliates, compromising or settling any such claims, actions, Proceedings or investigations, conducting negotiations with Buyer, its Affiliates their respective Representatives regarding such claims, actions, Proceedings or investigations, and, in connection therewith, to: (A) assert any claim or institute any action, Proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, Proceeding or investigation initiated by Buyer, its Affiliates or any other Person, or by any federal, state or local Governmental Authority against Sellers’ Representative and/or any of Sellers, and receive process on behalf of any or all Sellers in any such claim, action, Proceeding or investigation and compromise or settle on such terms as Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, Proceeding or investigation; (C) file any proofs of debt, claims and petitions as Sellers’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under the Escrow Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, Proceeding or investigation, it being understood that Sellers’ Representative shall not have any obligation to take any such actions, and shall not have any Liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of the Hatteras Sellers or the any Seller and/or Sellers’ Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other agreement, instrument or document in connection with the Transaction Documentsforegoing; provided, however, that no such failure to act on the part of the Sellers’ Representative Representative, except as otherwise provided in this Agreement or in the Escrow Agreement, shall be deemed a waiver of any such right or interest of any Hatteras Seller or the by Sellers’ Representative or by such Seller unless such waiver is made in writing signed by the waiving party or by Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xvvii) perform each to make, execute, acknowledge and deliver all such act other agreements, guarantees, Orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and thing whatsoever other writings, and, in general, to do any and all things and to take any and all action that Sellers’ Representative may be or is required to doRepresentative, or which Sellers’ Representative in its sole discretion determines is desirable to doreasonable discretion, pursuant to may consider necessary or proper or convenient in connection with or to carry out the intent transactions contemplated by this Agreement, the Transaction Documents, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) Sellers’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to reimbursement from Sellers of all its expenses incurred as Sellers’ Representative. In connection with this Agreement, the Escrow Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon Sellers’ Representative hereunder (i) Sellers’ Representative shall incur no responsibility whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with the Escrow Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) Sellers’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of Sellers’ Representative pursuant to such advice shall in no event subject Sellers’ Representative to Liability to any Seller. Sellers shall indemnify Sellers’ Representative against all losses, damages, Liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or Proceeding or in connection with any appeal thereof, relating to the acts or omissions of Sellers’ Representative hereunder, or under the Escrow Agreement or otherwise in its capacity as Sellers’ Representative. The foregoing indemnification shall not apply in the event of any action or Proceeding which finally adjudicates the Liability of Sellers’ Representative hereunder for its willful misconduct.
(c) The Parties acknowledge and agree that Sellers’ Representative, in its capacity as such, is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, the Parties acknowledge and agree that Sellers’ Representative shall have no Liability to, and shall not be liable for any losses of, any Seller in connection with any obligations of Sellers’ Representative, in Sellers’ Representative’s capacity as such, under this Agreement or the Escrow Agreement or otherwise in respect of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. transactions contemplated hereby.
(d) All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or and/or any termination of this Agreement. The Sellers’ Representative Agreement and/or the Transaction Documents.
(e) Each of Buyer and its Affiliates and the Escrow Agent shall have the right to rely upon all decisions, consents, instructions or actions taken or omitted to be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under pursuant to this Agreement in accordance with this Section 11.18 and the Escrow Agreement, all of which actions or omissions shall be legally binding upon Sellers, and each of Buyer, its Affiliates and the Escrow Agent are hereby relieved from any liability to any Seller or any of its Affiliates or Sellers’ Representative for acts done by them in reliance on any such Hatteras Seller and its heirsdecision, representativesconsent, successors and permitted assignsinstruction or action of Sellers’ Representative.
(bf) The grant of authority provided for in this Section 11.18: herein (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; Seller, and (ii) subject shall survive the consummation of the transactions contemplated by this Agreement. Without limiting the foregoing, and notwithstanding anything to the contrary in this Section 11.17Agreement, may the Company LP Agreement or any Organizational Documents of the Acquired Companies, (A) payments made by or on behalf of Buyer in full satisfaction of its obligations under this Agreement and in accordance with the terms of this Agreement shall satisfy in full Buyer’s obligations to the Sellers with respect to the Purchase Price (including under the Company LP Agreement and any other payments to be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
made hereunder or with respect to the CTOS Company Interests or the Blocker Company Interests), and (cB) If Sellers’ Representative or its successors each Seller acknowledges and permitted assigns, as the case may be, advise the Hatteras Sellers agrees that it will not make any claim against Buyer or the Company for any other amounts under the Company LP Agreement, whether or not the Purchase Price (or any allocation of the Purchase Price herein) is unavailable to perform it duties hereunderconsistent with the Company LP Agreement or any such Organizational Documents, within thirty (30) days of notice and whether or not any portion of such adviceamounts paid by or on behalf of Buyer in accordance with this Agreement is paid to such Seller, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is that this Section 11.17(f) does not alter any rights of a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Seller under any Rollover Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative which it is a party to this Agreement solely in its role of representative of the Hatteras Sellers according (except with respect to the terms of this Section 11.18. Accordingly, Agreement incorporated into the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyRollover Agreement).
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Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the appoints Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as itssuch Seller’s representative, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all (and such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) appointment is coupled with an interest and is being grantedirrevocable) to act in the name, place and stead of such Seller, to act on behalf of such Seller in partany amendment of or litigation or arbitration involving this Agreement, including defending, negotiating, settling or otherwise dealing with Claims under Sections 2 or 7, and to do or refrain from doing all such further acts and things, and to execute all such documents, as an inducement Sellers’ Representative deems necessary or appropriate in conjunction with any of the Transactions, including the power:
(1) to negotiate, execute and deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the Parties consummation of the Transactions, including pursuant to enter into this Agreement and the Escrow Agreement (it being understood that each Seller will be irrevocable deemed to have executed and survive delivered any such documents which Sellers’ Representative agrees to execute);
(2) to give and receive all notices and communications to be given or received under this Agreement, the deathEscrow Agreement and the Transactions and to receive service of process in connection with any indemnification notice, incompetencythe Escrow Agreement and the Transactions, bankruptcy including service of process; and
(3) to take all actions that under this Agreement and the Transactions may be taken by S▇▇▇▇▇▇ and to do or liquidation refrain from doing any further act or deed on behalf of Sellers that Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Transactions as fully and completely as such Seller could do if personally present or represented.
(b) Sellers’ Representative will not be liable to any Hatteras Seller for any act taken or omitted by it as permitted under this Agreement, the Escrow Agreement and the Transactions, except if such act is taken or omitted in bad faith or by willful misconduct. Sellers’ Representative will also be fully protected against Sellers, and will not be binding liable in any way, in relying upon any written notice, demand, certificate or document that he in good faith believes to be genuine (including facsimiles thereof). As to any matters not expressly provided for in this Agreement, Sellers’ Representative will not be required to exercise any discretion or take any action on any successor thereto; and (ii) subject to this Section 11.17behalf of Sellers. Buyer may conclusively rely upon, may be exercised without independent verification or investigation, all decisions made by Sellers’ Representative acting in connection with this Agreement, and will have no liability for any actions taken by signing as Sellers’ Representative of any Hatteras SellerRepresentative.
(c) If Sellers agree, severally but not jointly, to indemnify Sellers’ Representative or its successors for, and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative hold Sellers’ Representative will harmless against, any loss, liability or expense arising out of, relating to or resulting from any action taken or omitted to be appointed by taken without gross negligence, willful misconduct or bad faith on the remaining Principals; providedpart of Sellers’ Representative, howeverin connection with Sellers’ Representative’s carrying out its duties under this Agreement, thatthe Escrow Agreement and the Transactions, unless the successor including costs and expenses of successfully defending Sellers’ Representative is a Principal, the appointment against any Claim of such successor liability with respect thereto. Sellers’ Representative shall may consult with counsel, accountants or experts of its own choice and will have full and complete authorization and will not be subject to the prior written consent of Purchaser (not liable for any action taken or omitted to be unreasonably withheldtaken in good faith in accordance with the opinion of such counsel, conditioned accountants or delayed). Any references in this Agreement experts.
(d) If T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ becomes unable to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity serve as Sellers’ Representative, such other Person or Persons as may be designated by Sellers or their successors will succeed as Sellers’ Representative. If no such successor is designated by Sellers within five Business Days after the withdrawal of Sellers’ Representative, Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the will designate such successor.
(e) Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyRepresentative’s reasonable out-of-pocket expenses will be paid by S▇▇▇▇▇▇.
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Sellers’ Representative. By the execution and delivery of this Agreement, each member (a“Member”) Each of the Hatteras Sellers hereby irrevocably constitutesconstitutes and appoints ▇▇▇▇ ▇▇▇▇▇▇, designates and appoints, authorizes and empowers as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful agent and attorney-in-fact and agent, (the “Member Representative”) of such Member with full power powers of substitution or resubstitutionto act in the name, place and stead of such Member with respect to perform all such acts (or to omit from taking any action), the performance on behalf of each such Hatteras SellerMember under terms and provisions of this Agreement,, as are required, authorized or contemplated by this the Escrow Agreement and the other Transaction Documents related documents (the “Member Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Member Representative shall deem necessary or appropriate in connection with any of the transactions contemplated hereby and therebyunder this Member Documents, which includes including, without limitation, the power and authority to:
(ia) execute act for the Members with respect to all matters referred to in the Member Documents, including all adjustments to the Purchase Price and deliver all documents necessary indemnification matters set forth herein and the right to compromise or desirable to carry out settle any such claims on behalf of the intent of this Agreement and any other Transaction DocumentMembers;
(iib) determine whether amend or waive any provision of the conditions Member Documents (including any condition to Closing Closing) in Article VII have been satisfiedany manner which does not differentiate among the Members;
(iiic) serve employ and obtain the advice of legal counsel, accountants and other professional advisors as the named party (not Member Representative, in his individualsole discretion, but solely deems necessary or advisable in the performance of his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee duties as the Member Representative and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriaterely on their advice and counsel;
(ivd) give incur any expenses, liquidate and receive withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount which the Member Representative deems necessary for payment of or as a reserve against expenses, and all notices pursuant to this Agreement pay such expenses or any other Transaction Documentdeposit the same in an interest-bearing bank account established for such purpose;
(ve) grant any consentreceive all notices, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, communications and enforce the right to receive, any payments contemplated deliveries hereunder on behalf of the Hatteras Sellers for distribution to Members under the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Member Documents; and
(xvf) perform each such do or refrain from doing any further act or deed on behalf of the Members which the Member Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Member Documents as fully and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement completely as any of the foregoingMembers could do if personally present and acting and as though any reference to the Members in the Member Documents were a reference to the Member Representative. All The appointment of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Member Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheldirrevocable, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include and any duly appointed successor Sellers’ Representative. Purchaser other person may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the any actions of Sellers’ the Member Representative as the actions acts of each Hatteras Seller the Members in all matters referred to in this Section 11.18the Member Documents. Each Hatteras Seller Member hereby authorizes ratifies and confirms all that the other Parties hereto Member Representative shall do or cause to disregard be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for the Members on all of the matters set forth in the Members Documents in the manner the Member Representative believes to be in the best interest of the Members, but the Member Representative shall not be responsible to any notice delivered Member for any loss or other damage any Members may suffer by reason of the performance by the Member Representative of such Member Representative’s duties under the Member Documents. Member Representative’s obligations hereunder are subject to each of the Written Consent of the Meeting of the Members of Zonecare, dated as of the Effective Date and which indemnification terms are incorporated herein by reference. Each of the Members hereby expressly acknowledges and agrees that the Member Representative is authorized to act on behalf of such Members notwithstanding any dispute or disagreement among the Members, and that any person shall be entitled to rely on any and all action taken by the Member Representative under the Member Documents without liability to, or obligation to inquire of, any Hatteras Seller pursuant of the Members. If the Member Representative resigns or ceases to this Agreement except function in such capacity for Sellers’ any reason whatsoever, then the successor Member Representative shall be the person which the Members appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Member shall have the right to petition a court of competent jurisdiction for appointment of a successor Member Representative. The Parties acknowledge Members do hereby agree to jointly and agree that severally indemnify and hold the SellersMember Representative harmless from and against any and all liability, loss, cost, action, cause of action, damage, suits, debts, dues, sums of money, account reckonings, bills, covenants, contracts and agreements whatsoever in law or equity, or expense (including, without limitation, attorneys’ Representative is fees and costs) incurred or suffered as a party to this Agreement solely in its role of representative result of the Hatteras Sellers according to performance of such Member Representative’s duties under the terms of this Section 11.18Member Documents. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.[Signatures Begin on Next Page]
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Sellers’ Representative. (a) Each of the Hatteras Other Stockholder Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers appoints the Principal Seller (“Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative”) as itssuch Other Stockholder Sellers’ representative, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitutionto act in the name, place and stead of such Seller with respect to perform all such acts (or this Agreement and any Escrow Agreement, and to omit from taking any action), act on behalf of each such Hatteras SellerSeller in any amendment of or litigation or arbitration involving this Agreement and any Escrow Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as are requiredsuch Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the Contemplated Transactions, authorized this Agreement and any Escrow Agreement, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:any Escrow Agreement;
(iii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, consents, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and any Escrow Agreement (it being understood that such Seller shall execute and deliver any such documents which Sellers’ Representative agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims under this Agreement and any Escrow Agreement, including service of process in connection with arbitration;
(iv) to take all actions which under this Agreement and any Escrow Agreement may be taken by such Seller and to do or refrain from doing any further act or deed on behalf of the such Seller which Sellers’ Representative deems necessary or desirable appropriate in their sole discretion relating to carry out the intent subject matter of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve Escrow Agreement as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee fully and to resolve completely as such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;Seller could do if personally present; and
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make to receive all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications amounts to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right be paid to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this pursuant to any Escrow Agreement or the Transaction Documents; provided, however, that no and to distribute each Seller’s share of such failure amounts received to act each Seller as set forth on the part of the Schedule 2.2(b).
(b) Sellers’ Representative shall be deemed a waiver of such right or interest of not incur any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect liability to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement action taken or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that suffered by it or omitted hereunder as Sellers’ Representative may be or is required to do, or which while acting in good faith and in the exercise of reasonable judgment. Sellers’ Representative may, in its sole discretion determines is desirable to doall questions arising hereunder, pursuant to rely on the advice of counsel and other professionals and for anything done, omitted or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the suffered in good faith by Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The based on such advice, and Sellers’ Representative shall not be the only person authorized liable to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Selleranyone.
(c) If Sellers’ Representative A decision, act, consent or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days instruction of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall constitute a decision, act, consent or instruction from all of the Sellers, and shall be subject final, binding and conclusive upon each of the Sellers. The Corporation and Buyer may rely upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of every Seller.
(d) Notwithstanding the above, Sellers’ Representative may not amend this Agreement or any Escrow Agreement to (i) create any personal liability of any Sellers hereunder or thereunder, (ii) to increase the maximum aggregate indemnification obligation of the Sellers beyond the Indemnity Cap or (iii) take any action pursuant hereto that could disproportionately affect any Seller or group of the Sellers relative to the other Sellers without the prior written consent of Purchaser such affected Seller or group of the Sellers.
(not e) If the Principal Seller becomes unable or no longer desires to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to serve as Sellers’ Representative shall such other Person or Persons as may be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt designated by a majority-in-interest of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity shall succeed as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Sellers’ Representative. (a) Each Seller hereby appoints Continental Materials Corp. as the “Sellers Representative” to act as the agent of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers with the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses, the Purchase Price Adjustment and the allocation of substitution or resubstitutionthe Purchase Price as provided in this Agreement, (ii) to perform all such acts (or to omit from taking any action)execute and enter into, on behalf of each such Hatteras Sellerthe Sellers, the Escrow Agreement, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments of amounts held under the Escrow Agreement in connection with Losses as are requiredprovided herein and therein, authorized (iii) to negotiate and/or settle all claims under this Agreement or contemplated by the Escrow Agreement, (iii) to receive from the Buyer monies payable to the Sellers in accordance with the provisions of this Agreement and the other Transaction Documents Escrow Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents on the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of Sellers’ behalf in connection with this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve Escrow Agreement, as the named party (not in his individualSellers Representative, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion discretion, deems appropriate;
(iv) give proper and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make to perform all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights functions of the Hatteras Sellers Representative under this Agreement and the Transaction Documents Escrow Agreement. The Buyer and the Escrow Agent are entitled to rely on the acts and agreements of the Sellers Representative as the acts and agreements of the Sellers. The Sellers Representative shall be entitled to retain counsel and to refrain from enforcing any right incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Sellers Representative deems to be reasonably necessary or appropriate in connection with its performance of the Hatteras Sellers or the Sellers’ Representative its obligations under this Agreement or and the Transaction Documents; providedEscrow Agreement, however, that no and all such failure to act on fees and expenses incurred by the part of the Sellers’ Sellers Representative shall be deemed a waiver borne by each Seller. Subject to and in accordance with the provisions of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by Escrow Agreement, the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs fees and expenses incurred in respect of, or charged by, parties unaffiliated with by the Sellers’ Sellers Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative Section 7.01 shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or paid by the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement Sellers directly to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Sellers Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of paid from the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyEscrow Fund.
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Sellers’ Representative. (a) Each The Sellers’ Representative, on the terms hereafter set out, shall act for the Sellers with respect to the calculation of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentPurchase Price, with full power respect to the execution of substitution or resubstitution, to perform all such acts agreements and documents (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this including the Escrow Agreement and the other Transaction Documents Exchange Fund Agreement) and the transactions contemplated hereby making of all deliveries required to be made by the Sellers hereunder, with respect to the waiver of any condition under, and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable decision to carry out the intent of terminate this Agreement pursuant to, Sections 11 or 14, with respect to claims for indemnification made under Section 13 by the Buyer Indemnified Parties, with respect to claims by the Sellers against the Buyer made under Section 13, with respect to amendments to this Agreement, provided that such amendment shall not adversely affect the rights of any particular Seller or increase the liability or potential liability of any particular Seller in a manner which is not consistent with the manner in which the rights, liabilities or potential liabilities of the other Sellers are to be affected, with respect to amendments to the Schedules as contemplated by Section 15.8 and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification other decision or consent to be made by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
the Sellers hereunder, provided however that (ivi) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed not act for a waiver of such right or interest particular Seller in respect of any Hatteras matter relating to a claim for indemnification specific to a particular Seller or only, and (ii) if the Management Representative has specific authority under Section 15.23 to act for the Management Sellers then the Sellers’ Representative unless shall have no authority to act for the Management Sellers in connection with such waiver is in writing signed matter. For greater certainty, the assumption by the Sellers’ Representative;
(x) review Representative of the Preliminary Statement and provide notice to Purchaser under responsibilities set out in this Section 3.6 15.22 does not make any Seller liable for more than their respective Pro Rata Liability Share of any items of disagreement related thereto or approval thereofclaim by the Buyer Indemnified Parties. In each such case in this Agreement, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement Buyer shall be entitled to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statementdirect all communications through, and agree upon any resolution of any dispute with rely on decisions made by, the Sellers’ Representative. With respect to the matters covered by Section 3.6 hereofall such matters, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services may (i) take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for the account of the Sellers and make any and all determinations which may be required or permitted to be taken by the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faithSellers under this Agreement, including in connection with Sections 11 or 14 of this Agreement, (Aii) to resolve a disputed claim for indemnification asserted by any exercise such Buyer Indemnified Party pursuant to Article Xother rights, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act as are authorized, delegated and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement, (iii) dispute or refrain from disputing any claim made by the Buyer Indemnified Parties under this Agreement, (iv) negotiate and compromise any dispute that may arise under and exercise or refrain from exercising any remedies available under this Agreement, (v) execute any settlement agreement, release or other document with respect to such dispute or remedy, and (vi) exercise such rights, power and authority as are incidental to the foregoing.
(b) Each of the Sellers acts through the Sellers’ Representative with respect to the matters set out in Section 15.22(a) and none of the Sellers have the right to act independently with respect to any such matter or to institute or participate in any suit, action or proceeding, now existing or hereafter arising, against or by the Buyer with respect to this Agreement, any such right being irrevocably and exclusively with the Sellers’ Representative. Notwithstanding any disagreement or dispute among the Sellers or between any of the Sellers and the Sellers’ Representative, the Buyer shall be entitled to rely on any and all action taken by the Sellers’ Representative under this Agreement with respect to matters set out in Section 15.22(a), without any liability to, or obligation to inquire of, any of the Sellers.
(c) The power and authority of the Sellers’ Representative, as described in this Agreement, shall survive be effective until all rights and obligations of the Closing Date Sellers under this Agreement, have terminated, expired or termination been fully performed. Each of the Sellers shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the Sellers’ Representative may require from time to time for the purpose of giving effect to this Section 15.22 and shall use best efforts and take all such steps as may be within its power to implement to their full extent the provisions of this Section 15.22.
(d) Each of the Sellers shall severally indemnify and hold the Sellers’ Representative (including, for greater certainty, the shareholders, general and limited partners, officers, directors, employees, agents and affiliates of the Sellers’ Representative) (the “Sellers’ Representative Indemnified Parties”) harmless from and against such Seller’s Pro Rata Liability Share of any loss, damage or deficiencies (except as a result from the Sellers’ Representative’s willful misconduct as determined by a court of competent jurisdiction) that the Sellers’ Representative Indemnified Parties may suffer or incur in connection with any action taken by the Sellers’ Representative. Each of the Sellers (including the members of the EdgeStone Group) shall bear its Pro Rata Liability Share of such loss, damage or deficiency. The Sellers’ Representative Indemnified Parties shall not be liable to any of the Sellers with respect to any action or omission taken or omitted to be taken by the Sellers’ Representative pursuant to this Section 15.22, except in respect of the Sellers’ Representative’s willful misconduct as determined by a court of competent jurisdiction. The Sellers’ Representative Indemnified Parties shall not be responsible in any manner whatsoever for any failure or inability of the Buyer to honor any of the provisions of this Agreement. The Sellers’ Representative Indemnified Parties shall be fully protected by the only person authorized to take Sellers in acting or relying upon any action so requiredwritten notice, authorized direction, request, waiver, notice, consent, receipt or contemplated by this Agreement by any Hatteras Seller and, without limiting other paper or document which the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ RepresentativeRepresentative in good faith believes to be genuine and to have been signed or presented by the proper party or parties. The Sellers’ Representative Indemnified Parties shall not be each Hatteras Seller’s agent liable to the Sellers or the Buyer for service any error of process judgment, or any act done or step taken or omitted in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection herewith, except for its own willful misconduct as determined by a court of competent jurisdiction.
(e) The Sellers’ Representative may seek the advice of legal counsel, engage experts or otherwise incur reasonable expenses in the event of any dispute or question as to the construction of any of the provisions of this Agreement, or its duties hereunder, and the Sellers’ Representative Indemnified Parties shall incur no liability to the Sellers with respect to any disputes regarding action taken, omitted or arising out suffered by it in good faith in accordance with the opinion of such counsel or advice of such expert.
(f) The Sellers shall severally reimburse or otherwise hold the Sellers’ Representative Indemnified Parties harmless from and against their Pro Rata Liability Share of any and all costs and expenses incurred by the Sellers’ Representative in connection with this Agreement or and the transactions contemplated hereby. Any action taken by , including attorneys’ fees or fees of other experts, and, in addition to any and all other remedies available, the Sellers’ Representative Indemnified Parties shall have the right to direct that any amounts due to the Sellers under this Agreement be paid to the Sellers’ Representative Indemnified Parties to satisfy such costs and expenses.
(g) The Sellers’ Representative may resign at any time upon thirty days notice by submitting a written resignation to the Management Representative. In the case of the resignation of the Sellers’ Representative, the EdgeStone Group shall promptly appoint a successor.
(h) By execution and delivery of this Agreement by such Seller or his or her representative, agent or attorney, each of the Sellers hereby irrevocably constitutes and appoints the Sellers’ Representative as the true and lawful agent and attorney-in-fact of such Seller, which appointment is coupled with an interest, with full authority and power of substitution, except to the extent expressly provided to the contrary herein, to act in the name name, place and stead of such Seller with respect to all powers and rights in this Agreement (including without limitation to (i) amend or on behalf of any Hatteras Seller in connection with any matter arising under terminate this Agreement in accordance with this Section 11.18 shall Agreement, (ii) receive or deliver any and all notices to be binding upon such Hatteras Seller delivered to or by any of the Sellers hereunder, (iii) receive, hold and deliver to the Buyer Stock certificates and any other documents (including stock powers or other instruments or transfer relating thereto, and (iv) execute, acknowledge, deliver, record and file all ancillary agreements, certificates and documents which the Sellers’ Representative deems necessary or appropriate in its heirssole discretion in connection with the consummation of the transactions contemplated by the terms and provisions of this Agreement). Buyer and each of the Sellers hereby acknowledges that the Sellers’ Representative, representatives, successors and permitted assigns.
(b) The grant of authority provided for with respect to the matters set out in this Section 11.18: (i) is coupled with an interest and is being granted15.22, will not be acting in part, as an inducement such Person’s individual capacity pursuant to the Parties to enter into terms of this Agreement and will be irrevocable and survive Agreement, but solely in its capacity as the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assignsaccordingly, as a representative of the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively Buyer and absolutely rely, without inquiry, and until each of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller Sellers hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree agrees that the Sellers’ Representative is a will not be liable to that party to this Agreement solely for any action taken or omitted in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, good faith in its capacity as the Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (is hereby appointed as agent, agent for service of process and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agentfor each securityholder of the Company on the date hereof (each, a “Securityholder”), with full power of substitution or resubstitutionsubstitution, to perform all such acts (or act in the name, place and stead of a Securityholder with respect to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power thereby and authority to:
(i) execute to take any action and deliver all documents necessary make any decision required or desirable permitted to carry out the intent be taken or made by or on behalf of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) a Securityholder under or with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or the other Transaction Documents, including: (i) to act as paying agent under this Agreement and the Escrow Agreement; (ii) to give and receive notices and communications; (iii) to act for or on behalf of Sellers with respect to the escrow account created for the benefit of the Sellers and any other matter arising under this Agreement or the other Transaction Document;
Documents; (iv) to authorize delivery to Parent or any other Parent Indemnified Party of any funds and property in its possession or in the possession of the Escrow Agent in satisfaction of claims by Parent or any other Parent Indemnified Party; (v) to object to such deliveries; (vi) to negotiate, settle, compromise, agree to, commence, prosecute, participate in, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings; (vii) to comply with orders of courts and awards of courts, mediators and arbitrators with respect to such suits, claims or proceedings; (viii) to grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections Documents, including to amend or decisions contemplated by modify this Agreement or any other Transaction Document;
Documents; and (vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ixxi) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or take all actions that the Sellers’ Representative under this Agreement may, in its sole discretion, determine to be necessary or appropriate for the Transaction Documentsaccomplishment of the foregoing. Sellers’ Representative shall for all purposes be deemed the sole authorized agent of each Securityholder until such time as the agency is terminated. Such agency may be changed by Sellers from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that Sellers’ Representative may not be removed unless Sellers that received at least two-thirds of the Merger Consideration agree to such removal and to the identity of the substituted representative. Any vacancy in the position of Sellers’ Representative may be filled by approval of the Sellers that received at least a majority in interest of the Merger Consideration. No bond shall be required of the Sellers’ Representative, and the Sellers’ Representative shall not receive compensation for its services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each Securityholder during the term of the agency.
(b) As between the Sellers’ Representative and the other Securityholders: (i) the Sellers’ Representative shall not incur any liability with respect to any action taken or suffered by it or omitted under this Section 13.17 while acting in its capacity under this Section 13.17; (ii) the Sellers’ Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals and for anything done, omitted or suffered by the Sellers’ Representative shall not be liable to anyone while acting in its capacity under this Section 13.17; (iii) the Sellers’ Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no such failure other covenants or obligations shall be implied under this Agreement against the Sellers’ Representative (provided, however, that the foregoing shall not act as a limitation on the powers of the Sellers’ Representative determined by it to act be reasonably necessary to carry out the purposes of its obligations); (iv) each Securityholder shall severally (but not jointly) indemnify the Sellers’ Representative and hold it harmless against its Pro Rata Portion of any loss, liability or expense incurred on the part of the Sellers’ Representative shall be deemed a waiver (unless arising out of such right its gross negligence or interest willful misconduct) and arising out of any Hatteras Seller or in connection with the acceptance or administration of its duties under this Section 13.17; and (v) the Sellers’ Representative unless shall be entitled to satisfy any such waiver is in writing signed loss, liability and expense from the proceeds of the Escrow and the Sellers’ Representative Reserve Amount received by the Sellers’ Representative;Representative for distribution to the Sellers on a pro rata basis.
(xc) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 A decision, act, consent or instruction of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve shall constitute a decision, act, consent or otherwise defend any Purchaser Indemnitee as described hereininstruction of all of Sellers and shall be final, acting in good faithbinding and conclusive upon each such Securityholder. Parent may conclusively rely upon, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article Xwithout independent verification or investigation, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf until 30 days after receipt of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative notice of a change in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c13.17(a), continue to relyrely upon any such decision, without inquiryact, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered consent or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act instruction of the Sellers’ Representative under this Agreement as being the decision, act, consent or otherwise instruction of every such Securityholder, and Parent shall not be liable in respect of this Agreement any manner whatsoever for any action taken or not taken in reliance upon the transactions contemplated herebySellers’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Cott Corp /Cn/)
Sellers’ Representative. (a) Each of the Hatteras The Sellers hereby irrevocably constitutes, designates constitute and appoints, authorizes appoint the Sellers Representative as agent and empowers the Sellers’ Representative (attorney in fact for and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras other Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without Without limiting the generality of the foregoing, Purchaser shall be required the Sellers Representative has full power and authority, on behalf of each Seller and his, her or its successors and assigns, to provide notices to (i) interpret the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out terms and provisions of this Agreement or and the transactions contemplated hereby. Any action taken documents to be executed and delivered by Sellers’ Representative in the name of or on behalf of any Hatteras Seller the Sellers in connection herewith, including the Escrow Agreement and the agreement entered into by the Sellers Representative with the Escrow Agent with respect to the administration of the Holdback Amount (the “Holdback Agreement”), (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, the Escrow Agreement and the Holdback Agreement, (iii) receive service of process in connection with any matter arising claims under this Agreement, the Escrow Agreement or the Holdback Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in accordance the judgment of the Sellers Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) authorize delivery to the Buyer of the Indemnity Escrow Amount or any portion thereof in satisfaction of claims brought by the Buyer for Losses, (vii) object to such deliveries, (viii) distribute the Indemnity Escrow Amount and the Adjustment Escrow Amount and any earnings and proceeds thereon, (ix) administer, deduct, hold back and/or redirect any funds, including the Holdback Amount, which may be payable to any Seller pursuant to the terms of this Agreement, the Escrow Agreement, the Holdback Agreement or any agreements or documents executed and delivered in connection herewith in order to pay, or establish a reserve for, (A) any amount that may be payable by such Seller hereunder or (B) any costs, fees, expenses and other liabilities incurred by the Sellers Representative (in its capacity as such) in connection with this Agreement, the Escrow Agreement or the Holdback Agreement or its rights or obligations hereunder and thereunder, and (x) take all actions necessary or appropriate in the judgment of the Sellers Representative on behalf of the Sellers in connection with this Agreement, the Escrow Agreement and the Holdback Agreement, including bringing claims against the Buyer pursuant to Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns10.1.
(b) Such agency may be changed by the holders of a majority in interest of the Indemnity Escrow Amount (the “Majority-in-Interest”) from time to time upon not less than five days’ prior written notice to the Buyer. The grant of authority provided for Sellers Representative, or any successor hereafter appointed, may resign at any time by written notice to the Buyer. A successor Sellers Representative will be named by a Majority-in-Interest. All power, authority, rights and privileges conferred in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement Agreement to the Parties Sellers Representative will apply to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerSellers Representative.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras The Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses ofact done or omitted under this Agreement, the Escrow Agreement or the Holdback Agreement as Sellers Representative while acting in good faith, and any third Personact taken or omitted to be taken pursuant to the advice of counsel will be conclusive evidence of such good faith. The Buyer agrees that it will not look to the personal assets of the Sellers Representative, acting in such capacity, for the satisfaction of any Party obligations to be performed by the Company (pre-Closing) or to the Sellers. In performing any Indemnified Party of its duties under this Agreement or any agreements or documents executed and delivered in connection with herewith, the Sellers Representative will not be liable to the Sellers for any obligationsLosses that such Person may incur as a result of any act, actions or failure to act of act, by the Sellers’ Sellers Representative under this Agreement or otherwise any agreements or documents executed and delivered in respect connection herewith (including the Escrow Agreement), and the Sellers Representative will be indemnified and held harmless by the Sellers for all Losses, except to the extent that the actions or omissions of the Sellers Representative were taken or omitted not in good faith. The limitation of liability provisions of this Section 12.1(c) will survive the termination of this Agreement and the resignation of the Sellers Representative.
(d) If the Buyer is paid or distributed any portion of the Indemnity Escrow Amount in satisfaction of Losses resulting from an inaccuracy or a breach of the representations and warranties contained in Article IV or a breach by a Seller of a covenant contained in this Agreement, the breaching Seller will indemnify each non-breaching Seller in an amount equal to the product of (a) the portion of the Indemnity Escrow Amount paid or distributed to the Buyer pursuant to the Escrow Agreement as a result of such breach or inaccuracy and (b) the percentage applicable to such non-breaching Seller based on the Seller Pro Rata Portion, and the Sellers Representative may adjust releases of the Indemnity Escrow Amount or the transactions Holdback Amount (as well as any other payments or adjustments of Purchase Price hereunder) as necessary to address any such indemnification obligation that has not been satisfied. For the avoidance of doubt, this Section 12.1(d) shall in no way limit the Buyer’s rights to indemnification pursuant to Article X, including in the event that any non-breaching Seller is unsuccessful in recovering amounts contemplated herebyby this Section 12.1(d).
(e) Following the payment by the Sellers Representative of any expenses incurred by the Sellers Representative in the course of performing its obligations under this Agreement, the Sellers Representative shall distribute (i) the Optionholders’ Seller Pro Rata Share of the Remaining Holdback Amount, if any, to the Company and the Buyer shall cause the Company to (A) pay or cause the Subsidiary to pay such amount to the Optionholders, less any applicable Taxes required to be withheld, as promptly as practicable thereafter, and (B) pay such withheld Taxes to the proper Taxing Authority, and (ii) to each Stockholder its respective pro rata share (based on the Seller Pro Rata Portions) of the remaining Holdback Amount, if any. The Sellers Representative may make such distributions in multiple pro rata installments as the Sellers Representative deems prudent in the circumstances.
(f) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Sellers Representative in connection herewith shall be absolutely and irrevocably binding upon the Sellers as if such Person had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and the Escrow Agent and the Buyer may rely upon such action, exercise of right, power, or authority or such decision or determination of the Sellers Representative as the action, exercise, right, power, or authority, or decision or determination of such Person, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Buyer is hereby relieved from any liability to any Person for any acts done by the Sellers Representative and any acts done by the Buyer in accordance with any decision, act, consent or instruction of the Sellers Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Watts Water Technologies Inc)
Sellers’ Representative. (a) Each of Seller hereby designates ORIX Funds Corp. (the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the “Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)Representative”) as itsits representative, his or her true and lawful attorney-in-fact and agent, agent with full power of substitution and authority:
(i) to execute and deliver any documents or resubstitutioncertificates required to be delivered pursuant to this Agreement, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this including the Escrow Agreement and the Seller Expenses Escrow Agreement, and to agree to such amendments or modifications to this Agreement, the Escrow Agreement, the Seller Expenses Escrow Agreement or such other Transaction Documents documents or certificates as the Sellers’ Representative, in its sole discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement and the consummation of the transactions contemplated hereby and therebythereby as the Sellers’ Representative, which includes the power and authority to:
(i) execute and deliver all documents in its sole discretion, may deem necessary or desirable desirable, including any amendments or modifications to carry out this Agreement, the intent of this Escrow Agreement and any other Transaction Document;
(ii) determine whether or the conditions to Closing in Article VII have been satisfiedSeller Expenses Escrow Agreement;
(iii) serve to collect and receive all moneys and other proceeds and property payable to the Sellers from the Indemnity Escrow Account, the Adjustment Escrow Account and the Seller Expenses Escrow Account as described herein or otherwise payable to the named party (not Sellers pursuant to this Agreement, including the funds in his individualthe Indemnity Escrow Account, but solely the Adjustment Escrow Account and the Seller Expenses Escrow Account and any portion of or earnings accrued thereon which may be distributable to the Sellers, in his representative capacity) accordance with respect the Escrow Agreement or the Seller Expenses Escrow Agreement, as applicable, and, subject to any claim for indemnification by any Purchaser Indemnitee applicable withholding retention laws, to disburse and pay the same, to resolve such claims the extent payable to Sellers, to each Seller in accordance with the terms of this Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement, as Sellers’ Representative in its sole discretion deems appropriateapplicable;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consentas the Sellers’ Representative, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights and interests of the Hatteras Sellers and to enforce and protect the rights and interests of the Sellers’ Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement and each other agreement, document, instrument or certificate referred to herein or the transactions provided for herein, and to take any and all actions which the Sellers’ Representative believes are necessary or appropriate under this Agreement and the Transaction Documents Escrow Agreement for and on behalf of the Sellers, including (but subject to Section 10.07 hereof) asserting or pursuing any claim against the Acquiror or the Company, defending any Third-Party Claims or claims by any Acquiror Indemnified Party, consenting to, compromising or settling any such claims, conducting negotiations with any Acquiror Indemnified Party or the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any Action initiated by the Acquiror or the Company or any other Person, or by any Governmental Authority against the Sellers’ Representative, any or all of the Sellers, or the Indemnity Escrow Amount, the Adjustment Escrow Amount or the Seller Expenses Escrow Account and receive process on behalf of any or all of the Sellers in any such Action and compromise or settle on such terms as the Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such Action, (C) file any proofs of debt, claims and petitions as the Sellers’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Sellers’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(v) to refrain from enforcing any right of the Hatteras Sellers or any of them and/or the Sellers’ Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement, or any other agreement, instrument or document in connection with the Transaction Documentsforegoing; provided, however, that no such failure to act on the part of the Sellers’ Representative Representative, except as otherwise provided in this Agreement, the Escrow Agreement or the Seller Expenses Escrow Agreement, shall be deemed a waiver of any such right or interest of any Hatteras Seller or by the Sellers’ Representative or by such Sellers unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto waiving party or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (Avi) to resolve a disputed claim for indemnification asserted give and receive any notice to be given by any such Buyer Indemnified Party or to the Sellers pursuant to Article Xthis Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement (Bincluding, without limitation, to provide notice and instructions to the Escrow Agent and the Seller Expenses Escrow Agent and to authorize disbursement of funds from the Indemnity Escrow Account, the Adjustment Escrow Account or the Seller Expenses Escrow Account in accordance with this Agreement, the Escrow Agreement or the Seller Expenses Escrow Agreement, as applicable); and
(vii) to defend make any such Buyer Indemnified Party from payments or pay any Loss expenses under Article Xor in connection with this Agreement, including, where appropriate, retaining legal counsel the Escrow Agreement or other advisors in furtherance of that defense;
(xiv) pursue the Seller Expenses Escrow Agreement or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect Sellers, including pursuant to any claims against Purchaser relating to this Agreement or the Transaction Documents; andARTICLE X.
(xvb) perform each such act The Acquiror shall be entitled to rely on any and thing whatsoever that all actions taken by the Sellers’ Representative may be or is required to dowithout any liability to, or which obligation to inquire of, or seek the consent of any Seller. The Sellers’ Representative in shall not be entitled to any fee, commission or other compensation for the performance of its sole discretion determines is desirable to do, pursuant to or to carry out the intent of services hereunder.
(c) In connection with this Agreement and any other Transaction Documentinstrument, agreement or document relating hereto, and in exercising or failing to amend exercise all or supplement any of the foregoing. All of the indemnities, immunities and powers granted to conferred upon the Sellers’ Representative hereunder, (i) the Sellers’ Representative shall incur no responsibility whatsoever to the Sellers by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct and (ii) the Sellers’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Sellers’ Representative pursuant to such advice shall in no event subject the Sellers’ Representative to liability to the Sellers. The Sellers shall jointly and severally indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any Losses incurred without willful misconduct on the part of the Sellers’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement, the Escrow Agreement shall survive and the Closing Date or termination of this Seller Expenses Escrow Agreement. The Sellers’ Representative shall be entitled to recover the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf amount of any Hatteras Seller expenses incurred by it in connection with any matter arising under this Agreement the acceptance or administration of its duties hereunder from the Seller Expenses Escrow Account (but not solely from the Seller Expenses Escrow Account) in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras SellerExpenses Escrow Agreement.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sellers’ Representative. (a) Each In order to efficiently administer (i) the determination and payment of the Hatteras Final Closing Statement of Net Working Capital and the Working Capital Adjustment, (ii) the distribution of any amounts payable or distributable to Sellers, (iii) the waiver of any condition to the obligations of the Company or the Sellers to consummate the Contemplated Transactions, and (iv) the defense and/or settlement of any Proceedings with respect to which the Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, by approving this Agreement, or by executing and delivering any of the Closing deliveries contemplated by the Contemplated Transactions, Sellers hereby irrevocably constitutesdesignate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as their representative (the “Sellers’ Representative”).
(b) Sellers, designates and appointsby executing this Agreement, authorizes and empowers shall authorize the Sellers’ Representative (i) to make all decisions relating to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital and each successor appointed the Working Capital Adjustment, (ii) to make all decisions relating to the distribution of any amounts payable or distributable to or from Sellers hereunder, in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), on behalf of each such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company or the Sellers to consummate the Contemplated Transactions, or the defense and/or settlement of any Proceedings with respect to which Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, (iv) to give and receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as is contemplated to be taken by or on behalf of Sellers by the terms of this Agreement or the Escrow Agreement, (vi) to take all other Transaction Documents actions to be taken by or on behalf of Sellers in connection herewith, (vii) to withhold funds to pay Seller-related expenses and obligations, (viii) to withhold additional funds as determined by the Sellers’ Representative in its discretion to pay future or contingent Seller expenses and obligations and (ix) to seek recourse against any Seller for the benefit of the other Sellers in the event of a disbursement to the Buyer or the Company due to any breach of the representations and warranties made by such Seller as to himself, herself, or itself and his, her or its Shares and/or Options in a Closing delivery.
(c) In the event that the Sellers’ Representative becomes unable to perform his responsibilities hereunder or resigns from such position, Sellers holding, prior to the Closing, a majority of the Shares outstanding as set forth on Schedule 3.3 shall select another representative to fill such vacancy, and upon such approval such substituted representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(d) All decisions and actions by the Sellers’ Representative, including, without limitation, any agreement between the Sellers’ Representative and the transactions contemplated hereby Buyer relating to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital or the Working Capital Adjustment or the defense or settlement of any Proceedings with respect to which Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, shall be binding upon all of the Sellers, and therebyno Seller shall have the right to object, which includes dissent, protest or otherwise contest the power and authority tosame.
(e) By approving this Agreement, Sellers agree that:
(i) execute Buyer and deliver all documents necessary the Company shall be able to rely conclusively on the written instructions and decisions of the Sellers’ Representative as to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital or desirable the Working Capital Adjustment or the settlement of any claims for indemnification by Buyer or the Company pursuant to carry out the intent of this Agreement and Section 10.2 hereof or any other Transaction Documentactions required to be taken by the Sellers’ Representative hereunder, and no Seller or party hereunder shall have any cause of action against Buyer or the Company for any action taken by any such Person in reliance upon the instructions or decisions of the Sellers’ Representative;
(ii) determine whether all actions, decisions and instructions of the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give accordance with this Section 11.4 shall be conclusive and receive any and binding upon all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers and no Seller shall have any cause of action against the Sellers’ Representative for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers action taken, decision made or instruction given by the Sellers’ Representative under this Agreement, except for fraud or willful breach of this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed Escrow Agreement by the Sellers’ Representative;
(xiii) review the Preliminary Statement provisions of this Section 11.4 are independent and provide notice to Purchaser under Section 3.6 of severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any items of disagreement related thereto rights or approval thereof, remedies that any Seller may have in connection with the Contemplated Transactions or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral AuditorsEscrow Agreement;
(xiiv) review the Certificate provisions of 2013 Adjusted PTNI this Section 11.4 shall be binding upon the executors, heirs, legal representatives and provide notice to Purchaser under Section 3.7 successors of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNIeach Seller, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred references in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; andEscrow Agreement to a Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise;
(xvv) perform each such act the fees and thing whatsoever that Sellers’ Representative may expenses to be paid at or is required prior to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any Closing (either through available cash of the foregoing. All Company or from the Closing Date Purchase Price) shall include the sum of the indemnities, immunities and powers granted $300,000 to be paid to the Sellers’ Representative under this Agreement shall survive and to be used by the Sellers’ Representative for the payment of costs and expenses reasonably incurred by the Sellers’ Representative in connection with the exercise by it of the authority granted to it herein and in the Seller deliveries (including reasonable attorney fees and expenses and the fees and expenses of any accountants or other professional advisors retained by the Sellers’ Representative and any Working Capital Adjustment owed after Closing Date or termination by Sellers pursuant to the terms of this Agreement). The From time to time after the Closing, Sellers’ Representative may distribute to Sellers, pro rata in accordance with the Sellers’ ownership of Shares, such portion of such sum as the Sellers’ Representative reasonably determines will not be needed for the payment of future costs and expenses. After the final resolution of all claims asserted against, or asserted by or on behalf of, Sellers hereunder or under the Escrow Agreement and the final distribution to Sellers of all monies that are or could be distributable to them hereunder or under the Escrow Agreement, any portion of such sum remaining shall be distributed to Sellers pro rata in accordance with the only person authorized Sellers’ ownership of Shares; provided, however, that if the Sellers’ Representative incurs costs and expenses disproportionately due to take any action so requireda Seller’s breach of his, authorized her or contemplated its representations and warranties made by this Agreement by any Hatteras such Seller and, without limiting the generality in one of the foregoingSeller deliveries as to himself, Purchaser herself or itself, or his, her or its Shares or Options, such breaching Seller shall be required to provide notices to reimburse the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative for the additional costs and expenses disproportionately incurred; and
(vi) they will indemnify and hold harmless the Sellers’ Representative. The , severally and jointly, from and against any and all damages which may at any time be imposed on, incurred by or asserted against the Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect in any way relating to any disputes regarding or arising out of this Agreement Agreement, or the transactions contemplated hereby. Any any related agreement or instrument or any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not omitted to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or in connection herewith, unless such damages resulted solely from the bad faith or willful misconduct of the Sellers’ Representative.
(f) All fees and expenses reasonably incurred by the Sellers’ Representative in excess of $300,000 shall be paid from any funds otherwise due to Sellers (including funds due to the Sellers from the Escrow and eligible for distribution in respect accordance with the terms of this Agreement or and the transactions contemplated herebyEscrow Agreement) in proportion to the Sellers’ ownership of the Shares and if no funds are available from the Escrow, then directly from Sellers in proportion to the Sellers’ ownership of the Shares received by each Seller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standex International Corp/De/)
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the ----------------------- appoints ▇▇▇▇▇▇ Capital Corporation ("Sellers’ Representative ' Representative") or its ----------------------- designee (and each successor as appointed in accordance with Section 11.18(cwriting)) , as itsthe agent, his or her true proxy, and lawful attorney-attorney- in-fact and agent, with for the Sellers for all purposes under this Agreement (including without limitation full power and authority to act on the Sellers' behalf) to take any action, should it elect to do so in its sole discretion, (i) to consummate the transactions contemplated under this Agreement, (ii) in the event of substitution or resubstitutionsuch consummation, to perform all such acts (or to omit from taking any action), receive on behalf of the Sellers the Cash Consideration, provided, that, -------- ---- ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may, pursuant to this Section 14.6, receive on behalf of the Individual Sellers each of such Hatteras Individual Seller's Closing Payment Percentage, as are requirednet of the attributable Seller's Percentage of expenses, authorized relating to the Shares to be sold by such Individual Sellers hereunder and the Company may, pursuant to this Section 14.6, receive on behalf of the Individual Sellers each of such Seller's Closing Payment Percentage, net of the attributable Seller's Percentage of expenses, relating to the Options to be sold by such Individual Seller hereunder, (iii) to receive and pay out of the Cash Consideration the Seller's Percentage attributable to each Seller of all expenses incurred by or on behalf of the Sellers in connection with the transactions contemplated by this Agreement and to pay to each of the other Transaction Documents Sellers his or its Closing Payment Percentage, net of the attributable Seller's Percentage of expenses, provided, that, each of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP. and the transactions contemplated hereby and therebyCompany -------- ---- may, which includes pursuant to this Section 14.6, pay to the power and authority to:
(i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
Individual Sellers on whose behalf they receive Cash Consideration under clause (ii) determine whether hereof such Individual Sellers' Closing Payment Percentage, net of the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individualattributable Seller's Percentage of expenses, but solely in his representative capacity) with respect subject to any claim for indemnification by withholding requirements under applicable law, (iv) to conduct or cease to conduct, should it elect to do so in its sole discretion, the defense of any Purchaser Indemnitee or all claims against any of the Sellers in connection with this Agreement other than claims under 11.1.1(i) or 11.1.1(iii) of this Agreement, and to resolve settle any or all such claims as Sellers’ Representative in its sole discretion deems appropriate;
on behalf of any or all the Sellers and exercise any or all rights which any or all of the Sellers are permitted or required to exercise under this Agreement, and (ivv) give to execute and receive deliver, should it elect to do so in its sole discretion, on behalf of any and or all notices pursuant of the Sellers any or all amendments to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall all other actions to be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with or all of the Sellers and exercise any matter arising or all rights which any or all of the Sellers are permitted or required to exercise under this Agreement; provided, -------- however, that (a) the Sellers' Representative shall have no authority ------- to enter into any settlement of any claim under clause (iv) above or to execute and deliver any amendment to this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller under clause (v) above on behalf of Sellers (the "Individual Sellers") other than ------------------ MLA I, MLA II, MLA III, SLA I, SLA II and its heirsBCC ISI (collectively, representativesthe "BCC Sellers"), successors and permitted assigns.
without the consent of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (b) The grant the ----------- Sellers' Representative shall have no obligation to conduct any defense or settle any claim or enter into any amendment or take any action whatsoever on behalf of authority provided for in any Seller under this Section 11.18: (i) is coupled with an interest and is being granted, 14.6 or otherwise in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing its capacity as Sellers’ ' Representative of any Hatteras Seller.
and (c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered settlement entered into or other action taken by any Hatteras Individual Seller pursuant shall be valid only to the extent expressly permitted by this Agreement except for Sellers’ Representative. The Parties acknowledge Section 14.6, and agree that no such settlement or action (whether permitted or not by this Section 14.6) shall bind or otherwise affect the rights or obligations of the Sellers’ ' Representative is a party to this Agreement solely in its role of representative or any BCC Seller. Each of the Hatteras Sellers according hereby agrees not to assert any claim against, and to indemnify and hold harmless the terms of this Section 11.18. AccordinglySellers' Representative from and against any and all Losses incurred by, the Parties acknowledge and agree thatSellers' Representative or any of its partners, in its directors, officers, employees, agents, stockholders, consultants, investment bankers, representatives or controlling persons, or any Affiliate of any of the foregoing, relating to Sellers' Representative's capacity as Sellers’ Representative, ' Representative other than such claims or Losses resulting from the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party ' Representative's gross negligence or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebywilful misconduct."
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers hereby Seller has irrevocably constitutes, designates constituted and appoints, authorizes and empowers the appointed Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her its true and lawful agent and attorney-in-fact and agentfact, with full power of substitution to perform the duties of Sellers’ Representative under the terms of this Agreement and to act in such Seller’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement and the Related Documents, including without limitation: to act on such Seller’s behalf in any Proceeding involving this Agreement or resubstitutionany Related Document, to perform all such acts (or to omit from taking any action), give and receive notices and communications on behalf of each the Sellers where applicable, and to do or refrain from doing all such Hatteras Sellerfurther acts and things, and to execute all such documents as are required, authorized the Sellers’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and to the other Transaction Documents and the transactions contemplated hereby and therebyextent it is authorized to do so hereunder, which includes including the power and authority to:
to (i) execute and deliver all documents necessary or desirable to carry out incur reasonable expenses in the intent fulfillment of this Agreement and any other Transaction Document;
its duties hereunder, (ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individualagree to, but solely in his representative capacity) negotiate, enter into settlements and compromises of, and demand arbitration and comply with courts orders and awards of arbitrators with respect to any claim claims for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Related Document;
, (viii) grant any consentexecute and deliver all amendments, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Related Document;
(viii) receive, stock powers, certificates and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or documents that the Sellers’ Representative deems reasonably necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, (iv) pay the reasonable out of pocket fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement, (v) handle of any indemnification dispute with the Purchaser post-Closing of the transactions contemplated by this Agreement, and (vi) receive service of process in connection with any claims under this Agreement Agreement, where applicable. Notwithstanding the foregoing, the foregoing appointment, the Sellers’ Representative undertakings, and all arrangements referred to hereunder below, shall not apply to a Solo Shareholder Claim.
(b) The Sellers’ Representative’s power and duties may be exercised, discharged or performed by any person or representative authorized by the Transaction Documents; provided, however, that no such failure Sellers’ Representative to act on the part its behalf. The appointment of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to irrevocable, and the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include and any duly appointed successor Sellers’ Representative. Purchaser other Person may conclusively and absolutely rely, without inquiry, and until upon any action of the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representativeherein. The Parties acknowledge and agree Sellers hereby confirm all that the Sellers’ Representative is a party shall do or cause to be done by virtue of his appointment as the Sellers’ Representative in accordance with the provisions hereof. The Sellers’ Representative shall act for all Sellers on all of the matters set forth in this Agreement solely in its role of representative the manner the Sellers’ Representative, in his discretion, believes to be in the best interest of the Hatteras Sellers according and consistent with the Sellers’ Representative’s obligations under this Agreement.
(c) The Sellers’ Representative shall not be responsible or liable to any Seller for, and each Seller hereby irrevocably releases the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, Sellers’ Representative (in its capacity as such) and its respective officers, directors, shareholders, agents, employees and/or anyone on its behalf, from, any liability, losses or damages any Seller may incur or suffer as a result of any act, failure or omission whatsoever of the Sellers’ Representative in performing his duties under this Agreement, provided the Sellers’ Representative acts reasonably and in good faith.
(d) The Sellers shall, upon the Sellers’ Representative’s first demand fully indemnify and hold the Sellers’ Representative harmless, on a several basis, in accordance with each Seller’s respective Pro Rata Portion (where Sellers’ Representative shall participate as well in his capacity as a Seller), the Sellers’ Representative shall have no liability toin his capacity as such from and against any losses, and shall not be liable for damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs or expenses, other than any Losses ofsuch losses or damages arising from fraudulent acts or omissions on behalf of the Sellers’ Representative, any third Person, any Party incurred in the performance of his powers or to any Indemnified Party in connection with any obligations, actions or failure to act of duties as the Sellers’ Representative under this Agreement (or any failure to perform any such power or duty), including reasonable out-of-pocket legal fees and other costs and expenses of defending against any claim arising out of such duties.
(e) The Sellers’ Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals, and for anything done, omitted or suffered in good faith by the Sellers’ Representative based on such advice, the Sellers’ Representative shall not be liable to anyone. Notwithstanding anything to the contrary contained in this Agreement, the Sellers’ Representative, in its capacity as such, shall have no duties or responsibilities or rights except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against the Sellers’ Representative.
(f) The Sellers’ Representative may resign from his position as Sellers’ Representative hereunder at any time, by delivery of at least thirty (30) days’ prior written notice to the Shareholders. The Sellers representing in respect interest at least sixty percent (60%) of the aggregate Pro Rata Portion attributable to all Sellers shall have the authority, and, if the Sellers’ Representative shall resign, be dissolved, otherwise be legally incapacitated or unwilling to fulfill his/her/its responsibilities as Sellers’ Representative hereunder, the duty, to replace the Sellers’ Representative upon prompt written notice to the Purchaser and subject to Purchaser’s approval of such successor Sellers’ Representative. Any such successor shall become the “Sellers’ Representative” for purposes of this Agreement Agreement.
(g) All reasonable out-of-pocket expenses incurred by the Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers. Such expenses borne by the Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative and which were not covered in advance shall be reimbursed by the Sellers as provided above.
(h) Notwithstanding anything to the contrary in this Agreement, on the Closing, from the amount of the Closing Cash deposited by Purchaser with the Payment Agent, the amount of the Representative Fund (allocated between all Sellers in accordance with their respective Pro-Rata Portions) shall be retained by the Payment Agent, such amount being intended for use by the Sellers’ Representative, and released to it by the Payment Agent from time to time at its request, in its discretion, in covering out-of-pocket expenses incurred by it in carrying out its duties hereunder. The Sellers’ Representative may instruct the Payment Agent to invest and handle the amounts of the Representative Fund until the allocation or payment thereof, as the transactions contemplated herebycase may be, according to its commercial reasonable discretion. Promptly after the last payment required to be made by the Purchaser under this Agreement, or, if a Third Party Claim or any other claim is outstanding on such date, promptly after the date of settlement of all such claims, the Sellers’ Representative, through the Payment Agent, shall allocate and pay any remaining amount of the Representative Fund and any interest accrued thereon, to the Sellers’, based on their Pro Rata Portions, subject to the provisions of Section 1.6.
(i) The Purchaser shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Sellers’ Representative on behalf of the Sellers, and the Purchaser shall have no duty to inquire as to the acts and omissions of the Sellers’ Representative. Each Seller hereby acknowledges and irrevocably agrees that (1) all deliveries by the Purchaser to the Sellers’ Representative shall be deemed deliveries to the Sellers, (2) the Purchaser shall not have any Liability with respect to any aspect of the distribution or communication of such deliveries between the Sellers’ Representative and any Seller and (3) any disclosure made to the Sellers’ Representative by or on behalf of the Purchaser shall be deemed to be a disclosure made to each Seller. Each Seller hereby agrees that any payment made by or on behalf of the Purchaser to the Sellers’ Representative on such Seller’s behalf shall be deemed a direct payment to such Seller, and such Seller shall have no recourse to the Purchaser in the event that such payment is not delivered to such Seller by the Sellers’ Representative for any reason.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the appoints SWF Posse LLC as Sellers’ Representative of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) delivery of wire instructions of such Seller to Purchaser in connection with the payments hereunder or under any Ancillary Agreement to Sellers; (ii) review of the Statement, the Contingent Consideration Statement, and each successor appointed the Brand Sale Consideration Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in its sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in its sole discretion, in connection with the termination hereof in accordance with Article VII; (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in its sole discretion, in connection with the amendment hereof in accordance with Section 11.18(c10.06; (vii) accepting notices on behalf of such Seller in accordance with Section 10.03; (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Company or such Seller in accordance with Section 5.06; (ix) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (x) granting any consent or approval on behalf of such Seller under this Agreement, including any amendment, waiver or modification under this Agreement; (xi) allocating Seller Transaction Expenses in accordance with Section 1.03(d); (xii) (A) disputing or refraining from disputing, on behalf of such Seller, any claim made by Purchaser under this Agreement or any Ancillary Agreement, (B) negotiating and compromising, on behalf of such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any Ancillary Agreement, and (C) executing, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy; (xiii) engaging attorneys, accountants, agents or consultants on behalf of such Seller in connection with this Agreement Ancillary Agreement, and paying any fees related thereto; and (xiv) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as itsthe agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, his or her and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon 10 days’ prior written notice to Purchaser.
(b) Each Seller hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution or and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to make, execute or sign, acknowledge, deliver, record, file and/or publish any and all documents, agreements, instruments and certificates contemplated by this Agreement, the Ancillary Agreements and the Transactions and to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Membership Interests and the other Transactions as fully to all intents and purposes as such acts Seller might or could do in person. This special power of attorney is a special power of attorney coupled with an interest, is irrevocable, and shall survive the death or legal incapacity of such Seller. The undersigned hereby empowers Sellers’ Representative acting pursuant hereto to determine in its sole discretion the time when, purpose for and manner in which any power herein conferred upon it shall be exercised, and the conditions, provisions and covenants of any instruments or documents that may be executed by it pursuant hereto.
(c) Neither Sellers’ Representative nor any agent employed by it shall incur any liability to any Seller relating to the performance of its duties under this Agreement for any error of judgment, or any action taken, suffered or omitted to omit from taking any action), be taken on behalf of each Sellers (or any of them), except in the case of Sellers’ Representative’s gross negligence, actual fraud or willful misconduct. Sellers’ Representative may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by Sellers’ Representative hereunder in good faith and in accordance with the advice of such Hatteras Seller, as are required, authorized or contemplated by this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority to:counsel.
(id) execute Each Seller hereby irrevocably agrees, severally and deliver all documents necessary or desirable not jointly, to carry out the intent of this Agreement indemnify, defend and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individualhold Sellers’ Representative harmless from, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve bear such claims as Seller’s Pro Rata Share of, any Loss, liability or expense, including reasonable attorneys’ fees and expenses, incurred by Sellers’ Representative without gross negligence or fraud on the part of Sellers’ Representative, in connection with the performance of its duties, or arising out of, or in connection with, any action or decision taken or made on behalf of any Seller by Sellers’ Representative within the scope of Sellers’ Representative’s duties under this Section 10.18, and to be bound by all actions taken by Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver capacity as such within the scope of Sellers’ Representative’s duties under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction DocumentsSection 10.18; provided, however, that no such failure to act on only the part Group A Sellers shall bear their respective Group A Pro Rata Share of the any Accounting Firm fees or expenses incurred by Sellers’ Representative shall be deemed a waiver of such right pursuant to Section 1.06(b)(iii) or interest of any Hatteras Seller or the Section 1.07(b)(iii). In no event will Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice be required to Purchaser under Section 3.6 advance its own funds on behalf of any items of disagreement related thereto Sellers or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, otherwise. Sellers acknowledge and agree upon any resolution that the foregoing indemnities will survive the resignation or disqualification of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Upon the Closing, Purchaser will wire $250,000 (the “Sellers’ Representative shall Expense Fund”) to Sellers’ Representative, which will be used for the only person authorized to take purposes of paying directly, or reimbursing Sellers’ Representative for, any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers third party expenses pursuant to this Agreement solely and any agreements ancillary hereto. Sellers will not receive any interest or earnings on the Sellers’ Representative Expense Fund and irrevocably transfer and assign to Sellers’ RepresentativeRepresentative any ownership right that they may otherwise have had in any such interest or earnings. The Sellers’ Representative shall will not be each Hatteras Seller’s agent liable for service any loss of process with respect to any disputes regarding principal of the Expense Fund other than as a result of its gross negligence or arising out of this Agreement or the transactions contemplated herebyfraud. Any action taken by Sellers’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the name event of bankruptcy. Contemporaneous with or on behalf as soon as practicable following the completion of any Hatteras Seller in connection with any matter arising under this Agreement Sellers’ Representative’s duties, Sellers’ Representative will deliver the balance of the Expense Fund to Sellers in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Agreement. Sellers’ Representative acting by signing may resign from its capacity as Sellers’ Representative at any time by no less than 10 days’ prior written notice delivered to Purchaser. Upon the disqualification or resignation of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assignsRepresentative, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to promptly appointed (and in no event later than 15 days) by Sellers who, together, constitute a majority of the prior written consent aggregate Pro Rata Shares of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative Sellers who shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of succeed Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for “Sellers’ Representative. The Parties acknowledge ” hereunder.
(e) Each Seller hereby acknowledges and agree agrees that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative it shall have no liability to, and shall not be liable for right to enforce any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect provision of this Agreement or the transactions contemplated herebybring a claim hereunder directly, and all such rights of enforcement or claims may be brought solely by Sellers’ Representative (on behalf of any Seller).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cheesecake Factory Inc)
Sellers’ Representative. (a) Each of By approving this Agreement and the Hatteras Sellers transactions contemplated hereby, each Seller Party hereby irrevocably constitutes, designates and appoints, authorizes and empowers the appoints Sellers’ Representative (as such Seller Party’s representative and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful attorney-in-fact and agent, with full power of substitution or resubstitution, to perform all such acts (or to omit from taking any action), act on behalf of each such Hatteras Seller, as are required, authorized or contemplated by Seller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the other Transaction Documents and Ancillary Documents, including, but not limited to, the transactions contemplated hereby and thereby, which includes exercise of the power and authority to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.04;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
(v) grant any consent, approval or waiver under this Agreement or any other Transaction Ancillary Document;
(vi) make all other elections or decisions contemplated by this Agreement or and any other Transaction Ancillary Document;
(vii) approve waiversengage, clarifications employ or post-Closing modifications appoint any agents or representatives (including attorneys, accountants and consultants) to assist Sellers’ Representative in complying with its duties and obligations;
(viii) pursuant to Section 10.09, waive conditions, covenants and representations and warranties under this Agreement; and
(ix) take all actions necessary or appropriate in the good faith judgment of Sellers’ Representative for the accomplishment of the foregoing.
(b) Buyer and Parent shall be entitled to deal exclusively with Sellers’ Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller Party by Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller Party by Sellers’ Representative, as being fully binding upon such Seller Party. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Seller Parties. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon each such Seller Party. No Seller Party shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 1.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller Party or by operation of Law.
(c) Sellers’ 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 Seller Parties; provided, however, in no event shall Sellers’ Representative resign or be removed without the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative shall be appointed by the vote or written consent of a majority of the Seller Parties. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer and Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received; provided, that until such notice is received, Buyer and Parent shall be entitled to rely on the decisions and actions of the prior Sellers’ Representative.
(d) Sellers’ Representative shall not be liable to the Seller Parties for actions taken pursuant to this Agreement or any other Transaction Ancillary Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder on behalf of the Hatteras Sellers for distribution except to the Hatteras 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 Sellers;
(ix) to enforce ’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and protect the rights not jointly, indemnify and hold harmless Sellers’ 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 the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the in connection with its activities as Sellers’ Representative under this Agreement Agreement, in each case as such losses are suffered or the Transaction Documentsincurred; provided, howeverthat in the event it is finally adjudicated that any such loss or any portion thereof was primarily caused by the gross negligence, that no such failure to act on the part fraud, intentional misconduct or bad faith of the Sellers’ Representative, Sellers’ Representative shall be deemed a waiver reimburse Seller Parties the amount of such right indemnified losses attributable to such gross negligence, fraud, intentional misconduct or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good bad faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Sellers’ Representative. (a) Each By executing this Agreement, each of the Hatteras Sellers hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) unconditionally appoints ▇▇▇▇▇ ▇▇▇▇▇ as its, his or her their true and lawful attorney-in-fact fact, to act as their representative (“Sellers’ Representative”) under this Agreement and, as such, to act as such agent for the Sellers, and agent, for each of them (with full power of substitution or resubstitutionsubstitution), to perform all take such acts (or to omit from taking any action), action on behalf of each the Sellers with respect to all matters relating to this Agreement and the transactions contemplated hereby, including (i) to deliver the certificates representing the Shares required to be delivered by such Hatteras SellerSeller pursuant to this Agreement and the stock powers pertaining thereto; (ii) to execute and deliver all Transaction Documents, as are requiredcertificates, authorized and documents that the Sellers’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents Documents; (iii) to receive and execute receipts for all payments made by the transactions contemplated hereby and thereby, which includes Buyer and/or the power and authority to:
Company to any Seller under this Agreement; (iiv) execute and deliver all documents necessary to amend or desirable to carry out the intent waive any provision of this Agreement and any other Transaction Document;
(ii) determine whether the conditions to Closing in Article VII have been satisfied;
(iii) serve as the named party (not in his individual, but solely in his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as on behalf of Sellers’ Representative in its sole discretion deems appropriate;
(iv) give and receive any and all notices pursuant to this Agreement or any other Transaction Document;
; (v) grant any consent, approval or waiver to settle all disputes and claims that arise under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
contract, certificate or instrument delivered in connection with this Agreement; and (viivi) approve waivers, clarifications to do or post-Closing modifications to this Agreement refrain from doing any further act or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder deed on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or that the Sellers’ Representative under deems necessary or appropriate in such Person’s sole discretion relating to the subject matter of this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of as fully and completely as any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed could do if personally present and acting. All decisions and actions by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of , including any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with agreement between the Sellers’ Representative providing services and the Buyer relating to indemnification obligations of Sellers under Article VII, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) Representative shall incur no liability to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Documents; and
(xv) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken or suffered by Sellers in reliance upon any notice, direction, instruction, consent, statement or other documents believed by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheldgenuinely and duly authorized, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include nor for any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action or inaction taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its his capacity as Sellers’ Representative, including with respect to the indemnification obligations of Sellers under Article VII, including the defense or settlement of any claims and the making of payments with respect thereto. Sellers’ Representative may, in all questions arising under this Agreement and the transactions contemplated hereby, rely on the advice of counsel, and for anything done, omitted or suffered in good faith by Sellers’ Representative shall not be liable to Sellers.
(b) Buyer shall be entitled to conclusively rely on the instructions, decisions and acts of Sellers’ Representative. Buyer is hereby released and relieved from any liability to any Person for any acts done by it in accordance with any written instructions, decisions or acts of Sellers’ Representative. Buyer is hereby expressly authorized to rely on the genuineness of the signature of Sellers’ Representative on any instrument, certificate or document. Upon receipt of any writing that reasonably appears to have been signed by Sellers’ Representative, Buyer may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(c) Sellers’ Representative shall be entitled to conclusively rely, and shall be fully protected from action by Sellers in relying upon, any statements furnished to it by any Seller, or Buyer, or any other evidence deemed by Sellers’ Representative to be reliable, and Sellers’ Representative shall be entitled to act on the advice of counsel selected by him.
(d) By executing this Agreement, Sellers agree to (i) indemnify Sellers’ Representative (in his capacity as such) against and to hold Sellers’ Representative (in his capacity as such) harmless from, any and all Losses which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of his action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; and (ii) pay Sellers’ Representative for all costs and expenses incurred on behalf of Sellers, promptly upon demand by the Sellers’ Representative and on an as-incurred basis, on a pro rata basis. The agreements in this Section 8.01 shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect survive termination of this Agreement or the transactions contemplated herebyAgreement.
Appears in 1 contract
Sellers’ Representative. By the execution and delivery of this Agreement, each member (a“Member”) Each of the Hatteras Sellers hereby irrevocably constitutesconstitutes and appoints ▇▇▇▇ ▇▇▇▇▇▇, designates and appoints, authorizes and empowers as the Sellers’ Representative (and each successor appointed in accordance with Section 11.18(c)) as its, his or her true and lawful agent and attorney-in-fact and agent, (the “Member Representative”) of such Member with full power powers of substitution or resubstitutionto act in the name, place and stead of such Member with respect to perform all such acts (or to omit from taking any action), the performance on behalf of each such Hatteras SellerMember under terms and provisions of this Agreement, as are required, authorized or contemplated by this and the Escrow Agreement and the other Transaction Documents related documents (the “Member Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Member Representative shall deem necessary or appropriate in connection with any of the transactions contemplated hereby and therebyunder this Member Documents, which includes including, without limitation, the power and authority to:
(ia) execute act for the Members with respect to all matters referred to in the Member Documents, including all adjustments to the Purchase Price and deliver all documents necessary indemnification matters set forth herein and the right to compromise or desirable to carry out settle any such claims on behalf of the intent of this Agreement and any other Transaction DocumentMembers;
(iib) determine whether amend or waive any provision of the conditions Member Documents (including any condition to Closing Closing) in Article VII have been satisfiedany manner which does not differentiate among the Members;
(iiic) serve employ and obtain the advice of legal counsel, accountants and other professional advisors as the named party (not Member Representative, in his individualsole discretion, but solely deems necessary or advisable in the performance of his representative capacity) with respect to any claim for indemnification by any Purchaser Indemnitee duties as the Member Representative and to resolve such claims as Sellers’ Representative in its sole discretion deems appropriaterely on their advice and counsel;
(ivd) give incur any expenses, liquidate and receive withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount which the Member Representative deems necessary for payment of or as a reserve against expenses, and all notices pursuant to this Agreement pay such expenses or any other Transaction Documentdeposit the same in an interest-bearing bank account established for such purpose;
(ve) grant any consentreceive all notices, approval or waiver under this Agreement or any other Transaction Document;
(vi) make all other elections or decisions contemplated by this Agreement or any other Transaction Document;
(vii) approve waivers, clarifications or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, communications and enforce the right to receive, any payments contemplated deliveries hereunder on behalf of the Hatteras Sellers for distribution to Members under the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or the Sellers’ Representative under this Agreement or the Transaction Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative shall be deemed a waiver of such right or interest of any Hatteras Seller or the Sellers’ Representative unless such waiver is in writing signed by the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated with the Sellers’ Representative providing services to the Sellers’ Representative;
(xiii) resolve or otherwise defend any Purchaser Indemnitee as described herein, acting in good faith, including (A) to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article X, and (B) to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf of the Hatteras Sellers with respect to any claims against Purchaser relating to this Agreement or the Transaction Member Documents; and
(xvf) perform each such do or refrain from doing any further act or deed on behalf of the Members which the Member Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Member Documents as fully and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement completely as any of the foregoingMembers could do if personally present and acting and as though any reference to the Members in the Member Documents were a reference to the Member Representative. All The appointment of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or termination of this Agreement. The Sellers’ Member Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(b) The grant of authority provided for in this Section 11.18: (i) is deemed coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Seller.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheldirrevocable, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include and any duly appointed successor Sellers’ Representative. Purchaser other person may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the any actions of Sellers’ the Member Representative as the actions acts of each Hatteras Seller the Members in all matters referred to in this Section 11.18the Member Documents. Each Hatteras Seller Member hereby authorizes ratifies and confirms all that the other Parties hereto Member Representative shall do or cause to disregard be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for the Members on all of the matters set forth in the Member Documents in the manner the Member Representative believes to be in the best interest of the Members, but the Member Representative shall not be responsible to any notice delivered Members for any loss or other damage any Members may suffer by reason of the performance by the Member Representative of such Member Representative’s duties under the Member Documents. Member Representative’s obligations hereunder are subject to each of the Written Consent of the Meeting of the Members of Speedy, dated as of the Effective Date and which indemnification terms are incorporated herein by reference. Each of the Members hereby expressly acknowledges and agrees that the Member Representative is authorized to act on behalf of such Members notwithstanding any dispute or disagreement among the Members, and that any person shall be entitled to rely on any and all action taken by the Member Representative under the Member Documents without liability to, or obligation to inquire of, any Hatteras Seller pursuant of the Members. If the Member Representative resigns or ceases to this Agreement except function in such capacity for Sellers’ any reason whatsoever, then the successor Member Representative shall be the person which the Members appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Member shall have the right to petition a court of competent jurisdiction for appointment of a successor Member Representative. The Parties acknowledge Members do hereby agree to jointly and agree that severally indemnify and hold the SellersMember Representative harmless from and against any and all liability, loss, cost, action, cause of action, damage, suits, debts, dues, sums of money, account reckonings, bills, covenants, contracts and agreements whatsoever in law or equity, or expense (including, without limitation, attorneys’ Representative is fees) incurred or suffered as a party to this Agreement solely in its role of representative result of the Hatteras Sellers according to performance of such Member Representative’s duties under the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated herebyMember Documents.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MSC-Medical Services CO)
Sellers’ Representative. (a) Each of the Hatteras Sellers Seller hereby irrevocably constitutes, designates and appoints, authorizes and empowers the Sellers’ Representative appoints Macquarie Infrastructure Partners Inc. (and each successor appointed in accordance with Section 11.18(c)“MIP Inc.”) as itssuch Seller’s representative, his or her true and lawful attorney-in-fact and agentagent (as such, the “Sellers’ Representative”), with full power of substitution or resubstitutionto act in the name, place and stead of such Seller with respect to perform all such acts (or the Securities Purchase and the Merger and to omit from taking any action), act on behalf of each such Hatteras SellerSeller in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as are required, authorized such Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement and Agreement, including the other Transaction Documents and the transactions contemplated hereby and thereby, which includes the power and authority topower:
(i) execute to take any action required or permitted to be taken by the Sellers’ Representative as expressly set forth in this Agreement, including to make all determinations in respect of the Base Purchase Price and deliver all documents necessary or desirable Final Purchase Price and the portions thereof payable to carry out the intent of this Agreement Sellers and any other Transaction Documentthe Management Holders in accordance with Article 2;
(ii) determine whether to take all action necessary or desirable in connection with the conditions waiver of any condition to Closing in Article VII have been satisfiedthe obligations of Sellers to consummate the Securities Purchase and the Merger;
(iii) serve as to negotiate, execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the named party Securities Purchase and the Merger (not in his individualit being understood that such Sellers, but solely in his representative capacity) with respect to shall execute and deliver any claim for indemnification by any Purchaser Indemnitee and to resolve such claims as documents which the Sellers’ Representative in its sole discretion deems appropriateagrees to execute);
(iv) give and receive any and all notices pursuant to terminate this Agreement or any other Transaction Documentif Sellers are entitled to do so;
(v) grant any consent, approval to give and receive all notices and communications to be given or waiver received under this Agreement or and to receive service of process in connection with the any other Transaction Document;claims under this Agreement, including service of process in connection with arbitration; and
(vi) make to take all other elections or decisions contemplated by actions which under this Agreement that may be taken by Sellers and to do or refrain from doing any other Transaction Document;
(vii) approve waivers, clarifications further act or post-Closing modifications to this Agreement or any other Transaction Document;
(viii) receive, and enforce the right to receive, any payments contemplated hereunder deed on behalf of the Hatteras Sellers for distribution to the Hatteras Sellers;
(ix) to enforce and protect the rights of the Hatteras Sellers under this Agreement and the Transaction Documents and to refrain from enforcing any right of the Hatteras Sellers or which the Sellers’ Representative under deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as such Sellers could do if personally present. Notwithstanding the foregoing, nothing in this Section 10.14 shall be deemed to alter the Sellers’ obligations with respect to the Buyer set forth in this Agreement, regardless of any acts or omissions of the Transaction Documents; providedSellers’ Representatives, howeverincluding in the case of fraud, that no such failure to act gross negligence or bad faith on the part of the Sellers’ Representative.
(b) The Sellers’ Representative shall will not be deemed a waiver liable for any act taken or omitted by it as permitted under this Agreement, except if such act is taken as Sellers’ Representative or omitted in bad faith or gross negligence. The Sellers’ Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) The Sellers agree, severally but not jointly, to indemnify (in accordance with their respective direct and indirect ownership of such right or interest of any Hatteras Seller or MIPT as set forth on Appendix B) the Sellers’ Representative unless such waiver is in writing signed by for, and to hold the Sellers’ Representative harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the Sellers’ Representative;
(x) review the Preliminary Statement and provide notice to Purchaser under Section 3.6 , arising out of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Preliminary Statement within ninety (90) days after the Closing Date, either prepare and deliver the Preliminary Statement to Purchaser or choose to allow the Closing Statement to be deemed the Preliminary Statement and the Final Closing Working Capital Statement, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.6 hereof, including, where appropriate, engaging the Neutral Auditors;
(xi) review the Certificate of 2013 Adjusted PTNI and provide notice to Purchaser under Section 3.7 of any items of disagreement related thereto or approval thereof, or if Purchaser does not deliver the Certificate of 2013 Adjusted PTNI within ninety (90) days after the Closing Date, either prepare and deliver the Certificate of 2013 Adjusted PTNI to Purchaser or choose to allow the Certificate of Projected 2013 Adjusted PTNI to be deemed the Certificate of 2013 Adjusted PTNI and the Final 2013 Adjusted PTNI, and agree upon any resolution of any dispute with respect to the matters covered by Section 3.7 hereof, including, where appropriate, engaging the Neutral Auditors;
(xii) pay all costs and expenses incurred in respect of, or charged by, parties unaffiliated connection with the Sellers’ Representative’s carrying out its duties under this Agreement, including costs and expenses of successfully defending the Sellers’ Representative providing services to against any claim of liability with respect thereto. The Sellers’ 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 Sellers’ Representative is not receiving any fees, commissions or other compensation for acting as the Sellers’ Representative;.
(xiiid) resolve If MIP Inc. resigns in writing as Sellers’ Representative or otherwise defend becomes unable to serve as Sellers’ Representative, MIP Inc. shall designate as a successor Sellers’ Representative either (i) an Affiliate of MIP Inc. or (ii) any other Person with the written consent of Purchaser Indemnitee (the “Successor Sellers’ Representative”); provided, that such resignation shall only be effective upon effectiveness of a successor under this Section 10.14(d). Upon written acceptance by such Successor Sellers’ Representative to serve as described hereinSellers’ Representative, acting in good faith, including (A) such Successor Sellers’ Representative shall thereupon succeed to resolve a disputed claim for indemnification asserted by any such Buyer Indemnified Party pursuant to Article Xand become vested with all of the powers and duties and obligations of the original Sellers’ Representative without further act, and (B) the original Sellers’ Representative shall be discharged from its duties and obligations hereunder but shall continue to defend any such Buyer Indemnified Party from any Loss under Article X, including, where appropriate, retaining legal counsel or other advisors in furtherance of that defense;
(xiv) pursue or resolve any claim under Article X and to otherwise have power and authority to institute legal action or otherwise act on behalf the benefits of the Hatteras Sellers indemnification set forth in this Section 10.14. Notwithstanding any replacement of the original Sellers’ Representative hereunder, the provisions of this Section 10.14 shall continue in effect for the benefit of the original Sellers’ Representative with respect to any claims against Purchaser relating all actions taken or omitted to this Agreement or the Transaction Documents; andbe taken by it while acting as Sellers’ Representative.
(xve) perform each such act and thing whatsoever that Sellers’ Representative may be or is required to do, or which Sellers’ Representative in its sole discretion determines is desirable to do, pursuant to or to carry out the intent of this Agreement and any other Transaction Document, and to amend or supplement any of the foregoing. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing Date or and/or termination of this Agreement. The Sellers’ Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Hatteras Seller and, without limiting the generality of the foregoing, Purchaser shall be required to provide notices to the Hatteras Sellers pursuant to this Agreement solely to Sellers’ Representative. The Sellers’ Representative shall be each Hatteras Seller’s agent for service of process with respect to any disputes regarding or arising out of this Agreement or the transactions contemplated hereby. Any action taken by Sellers’ Representative in the name of or on behalf of any Hatteras Seller in connection with any matter arising under this Agreement in accordance with this Section 11.18 shall be binding upon such Hatteras Seller and its heirs, representatives, successors and permitted assigns.
(bf) The grant of authority to the Sellers’ Representative provided for in this Section 11.18: 10.14, (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Hatteras Seller and will be binding on any successor thereto; Seller, and (ii) subject to this Section 11.17, may be exercised by Sellers’ Representative acting by signing as Sellers’ Representative of any Hatteras Sellershall survive the Closing.
(c) If Sellers’ Representative or its successors and permitted assigns, as the case may be, advise the Hatteras Sellers that it is unavailable to perform it duties hereunder, within thirty (30) days of notice of such advice, an alternative Sellers’ Representative will be appointed by the remaining Principals; provided, however, that, unless the successor Sellers’ Representative is a Principal, the appointment of such successor Sellers’ Representative shall be subject to the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). Any references in this Agreement to Sellers’ Representative shall be deemed to include any duly appointed successor Sellers’ Representative. Purchaser may conclusively and absolutely rely, without inquiry, and until the receipt of written notice of a change of Sellers’ Representative under Section 11.18(c), continue to rely, without inquiry, upon the actions of Sellers’ Representative as the actions of each Hatteras Seller in all matters referred to in this Section 11.18. Each Hatteras Seller hereby authorizes the other Parties hereto to disregard any notice delivered or other action taken by any Hatteras Seller pursuant to this Agreement except for Sellers’ Representative. The Parties acknowledge and agree that the Sellers’ Representative is a party to this Agreement solely in its role of representative of the Hatteras Sellers according to the terms of this Section 11.18. Accordingly, the Parties acknowledge and agree that, in its capacity as Sellers’ Representative, the Sellers’ Representative shall have no liability to, and shall not be liable for any Losses of, any third Person, any Party or to any Indemnified Party in connection with any obligations, actions or failure to act of the Sellers’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)