Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including: (i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable; (ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI; (iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI; (iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement; (v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms; (vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith; (vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement; (viii) delivering all notices required to be delivered by either Seller; and (ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative. (b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller. (c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent. (d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Sellers’ Representative. The Selling Parties hereby appoint ▇▇. ▇▇▇▇ (a) Each Seller irrevocably constitutes and appoints VPM as the “Sellers’ Representative” to act ”) as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in such Seller’s name, place and stead, in any and all capacitiesauthorizing it to act on their behalf to supervise the Closing, to do execute and perform every act deliver any instruments of transfer or other documents required of Selling Parties and thing receive documents required of Buyer at the 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 to be done with respect to all matters arising under by this Agreement, the Escrow Agreement and any to administer all other Seller Ancillary matters related to this Agreement, as contemplated by this Agreement. All The Selling Parties hereby confirm all actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. that Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of its appointment as Sellers’ Representative of the foregoing, Selling Parties. Sellers’ Representative shall have full power act for the Selling Parties on all of the matters set forth in this Agreement in the manner Sellers’ Representative believes to be in the best interest of the Selling Parties and authority to interpret all consistent with the terms and provisions of obligations under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. but Sellers’ Representative shall not be liable responsible to either Seller the Selling Parties for any action taken Losses the Selling Parties may suffer by the performance of its duties under this Agreement, other than Losses arising from the willful misconduct or omitted gross negligence in the performance of its duties under this Agreement. The Selling Parties agree jointly and severally to indemnify, defend and hold harmless Sellers’ Representative and its officers, directors, members, employees and representatives from and against any and all Losses that may be incurred by any of them arising out of or in connection with its appointment as Sellers’ Representative under this Agreement (except such as may result from Sellers’ Representative willful misconduct or gross negligence in the performance of its duties under this Agreement), including the 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 Sellers’ Representative hereunder or under any other document hereunder, or in connection therewithwith this Agreement. Sellers’ Representative, except each Selling Party and Buyer expressly acknowledge that Sellers’ Representative shall not be relieved have no authority or responsibility to act on behalf of any Liability imposed Selling Party in connection with any claim, action or proceeding initiated against such Selling Party pursuant to a breach by Law for actual fraudsuch Selling Party of such Selling Party’s individual representations, gross negligence warranties or willfulcovenants hereunder.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Titanium Asset Management Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes The Sellers Representative is hereby appointed by each Member (and appoints VPM its successors and assigns) as “Sellers’ Representative” to act as such Seller’s true agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting with full power of substitution for such Seller party, for and in on behalf of such Seller’s nameparty, place as the party authorized to: (i) negotiate, defend, dispute, contest, assert, compromise and stead, in any settle all post-Closing claims and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, including any dispute or 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 Escrow Agreement Sellers Representative, shall have full authority to negotiate, defend, dispute, contest, assert, compromise and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereundersettle such claims and demands, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers (ii) agree to, enter into settlements and their respective heirscompromises of, estatesand demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and matters, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall to take any and all actions which it believes are 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, the Escrow Agreement or (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 Ancillary Agreement for relating to the Transaction Documents and on behalf of Sellersthe transactions contemplated by the Transaction Documents, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case without having to seek or obtain the consent of the Members. Sellers Representative shall keep each of the Members reasonably informed in connection with any adjustments thereto) from Buyers and receiving on behalf of action or decision delegated to Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with Representative by this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative10.13, and shall promptly provide each Member with all documentation or communication involved therewith.
(b) Each Seller grants unto said attorney-in-fact The Sellers Representative shall not be liable for any act done or omitted hereunder as the Sellers Representative while acting in good faith and agent full power in the exercise of reasonable judgment. The Members shall indemnify the Sellers Representative and authority to do 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 perform each and every act and thing necessary arising out of or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might acceptance or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality administration of the foregoingSellers Representative’s duties under this Agreement, Sellers’ Representative including the reasonable fees and expenses of any legal counsel retained by the Sellers Representative. This right of indemnification shall have full power and authority to interpret all survive the terms and provisions termination of this Agreement. Any Person, including Buyer, dealing with the Sellers Representative is entitled to rely on the actions taken by, and consents and approvals given by, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf Sellers Representative as the actions of all Sellers and their successors. Buyers and each Member without the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative need for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Sellerfurther investigation. A successor Person, including Buyer, shall be entitled to Sellers’ rely on the Sellers Representative’s actions, consents and approvals notwithstanding any knowledge of the relying Person. No Person shall have any liability for relying on the Sellers Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerforegoing manner.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, If the Sellers Representative becomes unable or unwilling to serve as an inducement agent, such other Person or Persons as may be designated by the Members shall succeed such Person as the Sellers Representative. If the Sellers Representative should at any time become unwilling to Buyers to enter into this Agreement serve as the Sellers Representative, he promptly shall so notify Seller in writing, and shall be irrevocable and survive bear no liability of any kind or nature whatsoever as a consequence of such determination. In addition, at any time as determined in the deathsole discretion of the Sellers Representative, incompetencythe Sellers Representative may decline to take any action, bankruptcy or liquidation of either Seller and shall be binding on make any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunderdetermination, or in connection therewith, except that Sellers’ Representative shall not be relieved otherwise bear any expense without having first obtained the approval or consent of Seller or any Liability imposed by Law for actual fraud, gross negligence or willfulMember.
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Sellers’ Representative. (a) Each of Seller irrevocably constitutes 1 and appoints VPM as “Seller 2 hereby appoints, authorizes and empowers Sellers’ Representative” Representative to act as such Seller’s true the representative, exclusive agent and lawful attorney-in-fact for the benefit of Sellers in connection with, and agent to facilitate the consummation of, the transactions contemplated hereby, in each case, which shall include the power and authorizes authority:
(i) to execute and deliver any agreement contemplated hereby (with such modifications or changes therein as to which Sellers’ Representative, acting for in its sole discretion, shall have consented) and to agree to such Seller and in such Seller’s name, place and steadamendments or modifications thereto as Sellers’ Representative, in any and all capacitiesits sole discretion, to do and perform every act and thing required or permitted determines to be done desirable;
(ii) to execute and deliver such amendments, waivers and consents in connection with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by agreement contemplated herein as Sellers’ Representative hereunderRepresentative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of Sellers under or relating to this Agreement and any agreement contemplated herein or the Escrow Agreement transactions provided for herein or under any other Seller Ancillary Agreement shall be binding upon all Sellers therein, and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall to take any and all actions which it that Sellers’ Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement agreement contemplated herein for and on behalf of Sellers, as fully as if Sellers were acting on their own behalfincluding asserting or pursuing any Claim against Buyer or its Representatives, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant case, to the Escrow Agreement and distributing extent such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting toClaims are permitted hereunder, compromising or settling all indemnity claims any such Claims, conducting negotiations with Buyer and its Representatives regarding such Claims and, in connection therewith, to (A) assert or obligations institute any Claim, (B) investigate, defend, contest or taking litigate any Claim initiated by a Party, its Affiliates or any other actions Person, or by any federal, state or local Governmental Authority against Sellers’ Representative, any of Sellers and receive process on behalf of any Seller in any such Claim or investigation and all Sellers pursuant compromise or settle on such terms as Sellers’ Representative shall determine to Article XI;
be appropriate, and give receipts, releases and discharges related to, any such Claim or investigation, (ivC) initiating or taking file any action with respect to any suitproofs of debt, action or proceeding arising out of or related to this Agreement;
(v) executing claims and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time petitions as Sellers’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any Order rendered in any such Claim or desirable investigation, it being understood that Sellers’ Representative shall not have any obligation to fulfill the interests take any such actions and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) shall not have any liability for any failure to assist in connection herewith and therewithtake any such actions;
(viiiv) taking to receive or provide any notice or communication hereunder and under any agreement contemplated herein;
(v) to refrain from enforcing any right of any Seller under or relating to this Agreement or any agreement contemplated herein; provided, however, that no such failure to act on the part of Sellers’ Representative, except as otherwise provided herein, shall be deemed a waiver of any such right or interest by Sellers’ Representative or Sellers, unless such waiver is made under Section 12.05; and
(vi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action on behalf of Sellers from time to time as that Sellers’ Representative Representative, in its sole and absolute discretion, may deem consider necessary or desirable proper or convenient in connection with or to make or enter into any waiver, amendment, agreement, opinion, certificate or other document carry out the transactions contemplated under by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeagreement contemplated herein.
(b) Each Seller grants unto said attorney-in-fact CD&R hereby acknowledges and agent full power and authority agrees to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality authorization of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent act as its representative in connection with, and to each Sellerfacilitate the consummation of, the transactions contemplated hereby with respect to the rights and duties of Sellers’ Representative provided for herein, including as set forth in Section 2.07 and Section 8.06.
(c) ▇▇▇▇▇, Buyer Parent and their respective Affiliates shall have the right to rely upon all actions taken or omitted to be taken by Sellers’ Representative pursuant to this Agreement or any agreement contemplated herein, all of which actions or omissions shall be legally binding upon Sellers, and none of Sellers shall have the right to object, dissent, protest or otherwise contest the same.
(d) The appointment and grant of power and authority provided for in this Section 13.7 to Sellers’ Representative hereunder (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either any Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentconsummation of the transactions contemplated hereby.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Performance Food Group Co)
Sellers’ Representative. The Selling Parties hereby appoint VAM (a) Each Seller irrevocably constitutes and appoints VPM as the “Sellers’ Representative” to act ”) as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in such Seller’s name, place and stead, in any and all capacitiesauthorizing it to act on their behalf to supervise the Closing, to do execute and perform every act deliver any instruments of transfer or other documents required of Selling Parties and thing receive documents required of Buyer at the 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 to be done 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 arising under related to this Agreement, the Escrow Agreement and any other Seller Ancillary as contemplated by this Agreement. All The Selling Parties hereby confirm all actions taken by Sellers’ Representative hereunder, under that the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting of its appointment as the generality Sellers’ Representative of the foregoing, Selling Parties. The Sellers’ Representative shall have full power 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 authority to interpret all consistent with the terms and provisions of obligations under this Agreement, but the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable responsible to either Seller the Selling Parties for any action taken Losses the Selling Parties may suffer by the performance of its duties under this Agreement, other than Losses arising from the willful misconduct or omitted by gross negligence in the performance of its duties under this Agreement. The Selling Parties agree jointly and severally to indemnify, defend and hold harmless the Sellers’ Representative hereunder or under and its officers, directors, members, employees and representatives from and against any other document hereunder, and all Losses that may be incurred by any of them arising out of or in connection therewithwith 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 performance of its duties under this Agreement), except including the 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 in connection with this Agreement. The Sellers’ Representative, each Selling Party and Buyer expressly acknowledge that the Sellers’ Representative shall not be relieved have no authority or responsibility to act on behalf of any Liability imposed Selling Party in connection with any claim, action or proceeding initiated against such Selling Party pursuant to a breach by Law for actual fraudsuch Selling Party of such Selling Party’s individual representations, gross negligence warranties or willfulcovenants hereunder.
Appears in 1 contract
Sources: Sale, Purchase and Put/Call Agreement (Federated Investors Inc /Pa/)
Sellers’ Representative. (a) Each By approving this Agreement and the transactions contemplated hereby, each Seller shall have irrevocably constitutes authorized and appoints VPM as “appointed Sellers’ Representative” to act Representative as such Seller’s true representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for to act on behalf of such Seller with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done taken by the Sellers’ Representative pursuant to this Agreement, including the exercise of the power to: (i) give and receive notices and communications; (ii) 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 ARTICLE VII and ARTICLE IX; (iii) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to ARTICLE VII and ARTICLE IX; (iv) execute and deliver all matters arising under documents necessary or desirable to carry out the intent of this Agreement, the Escrow Agreement and any Ancillary Document; (v) make all elections or decisions contemplated by this Agreement and any Ancillary Document; (vi) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Sellers’ Representative in complying with its duties and obligations; and (vii) take all actions necessary or appropriate in the good faith judgment of Sellers’ Representative for the accomplishment of the foregoing. Buyer shall be entitled to deal exclusively with Sellers’ Representative on all matters relating to this Agreement (including ARTICLE IX) 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 Ancillary Agreementby Sellers’ Representative, as being fully binding upon such Seller. All actions taken Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Sellers. Any decision or action by Sellers’ Representative hereunder, under including any agreement between Sellers’ Representative and Buyer relating to the Escrow Agreement defense, payment or under settlement of any other Seller Ancillary Agreement claims for indemnification hereunder, shall be binding upon constitute a decision or action of all Sellers and their respective heirsshall be final, estates, executors, personal representatives binding and successors and permitted assigns as if expressly confirmed and ratified in writing by conclusive upon each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either SellerPerson. No Seller may take any of shall have the actions set forth in paragraphs (i) through (ix) right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 13.7(a) without Section, including the prior written consent power of the 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 or Sellers’ Representative, or by operation of Law.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that The Sellers’ Representative may lawfully do or cause to resign at any time, and may be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative removed for any notice contemplated reason or no reason by this Agreement, the Escrow Agreement vote or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by written consent of a majority in interest of Sellersthe Sellers according to each Seller’s Pro Rata Share (the “Majority Holders”); provided, provided that notice thereof is given promptly by the successor however, in no event shall Sellers’ Representative resign or be removed without the Majority Holders 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 the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyers 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 shall be entitled to rely on the decisions and actions of the Escrow Agent and to each Sellerprior Sellers’ Representative as described in Section 11.01(a) above.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller the Sellers for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any action taken act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative hereunder or under shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any other document hereunderand all losses, or liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection therewithwith its activities as Sellers’ Representative under this Agreement (the “Representative Losses”), except in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, Sellers’ Representative shall not be relieved reimburse the Sellers the amount of any Liability imposed by Law for actual such indemnified Representative Loss attributable to such gross negligence, fraud, gross negligence intentional misconduct or willfulbad faith. The Representative Losses shall be satisfied from the Sellers, severally and not jointly (in accordance with their Pro Rata Shares), as soon as practicable after the date on which the final obligation of Sellers’ Representative under this Agreement has been discharged or such other date as Sellers’ Representative deems appropriate. Representative Losses may be recovered by the Sellers’ Representative from other funds that become payable to the Sellers under this Agreement in accordance to 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. 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, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers’ Representative or the termination of this Agreement.
(d) Buyer shall be entitled to rely (without investigation) on and shall have no liability to any Seller or any other Person for, any action taken by the Sellers’ Representative as being taken by the Sellers’ Representative for itself and on behalf of each of the Sellers, and fully authorized by each Seller. Each Seller hereby agrees that for any legal proceedings arising under this Agreement, the Seller may be served legal process by registered mail to the address set forth in Section 11.03 for the Seller and that service in such manner shall be adequate, and such Seller shall not assert any defense or claim that service in such manner was not adequate or sufficient in any court in any jurisdiction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Wrap Technologies, Inc.)
Sellers’ Representative. (a) Each The Seller irrevocably constitutes Representative is hereby constituted and appoints VPM appointed as “Sellers’ Representative” to act as such Seller’s true agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ the Seller Representative shall have has full power and authority authority, on behalf of each Seller and its, his or her successors and assigns, to (i) interpret all the terms and provisions of this Agreement, the Escrow Agreement and any the Related Documents, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other Seller Ancillary documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and to consent to the Related Documents, (iii) receive service of process in connection with any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by 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 payment or 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 other portion thereof, (viii) object to such deliveries, (ix) distribute the Escrow Funds and any earnings and proceeds thereon, and (x) take all actions necessary or appropriate in the judgment of the Seller Ancillary Representative on any Seller in connection with this Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent Agreement, including, without limitation, entering into amendments hereof and to each Sellerthereof.
(cb) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either any Seller for any action act done or omitted under this Agreement as Seller Representative while acting in good faith, and any act taken or omitted by Sellers’ to be taken pursuant to the advice of counsel shall be conclusive evidence of such good faith.
(c) From and after the Closing Date, Buyer and the Escrow Agent shall be entitled to deal exclusively with the Seller Representative hereunder on all matters pertaining to the rights and obligations of Seller (and each of them) under this Agreement and the Escrow Agreement. A decision, act, consent or under 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 other document 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 Seller 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, or in connection therewiththen the Seller by [majority vote] shall promptly appoint a successor to the Seller Representative. In addition, except that Sellers’ 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 not be relieved of any Liability imposed by Law become the “Seller Representative” for actual fraudall purposes under this Agreement, gross negligence or willfuleffective 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) Sellers have agreed that it is desirable to designate a representative to act on behalf of the Sellers for certain limited purposes, as specified herein. Each Seller irrevocably constitutes and hereby appoints VPM as “the Sellers’ Representative” Representative to act as such Seller’s true and lawful attorney-in-fact with full power of substitution to (i) determine the Final Purchase Price and agent and authorizes to pay Sellers’ Representativeexpenses in connection with the determination of the Final Purchase Price, acting for such Seller (ii) execute and in such Seller’s namedeliver the Escrow Agreement on behalf of Sellers and take all actions contemplated by the Escrow Agreement on behalf of Sellers, place (iii) execute all documents and steadtake all other actions that may be necessary, in convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, (iv) make all determinations, elections, Consents, notices, agreements and other actions permitted or required under or pursuant to this Agreement and the Escrow Agreement, (v) administer this Agreement and the Escrow Agreement, (vi) amend or waive any term of this Agreement and all capacitiesthe Escrow Agreement, to do and perform every act and thing required (vii) settle, compromise or permitted to be done otherwise resolve any claim or dispute under or with respect to this Agreement and the Escrow Agreement, including any claim for indemnification asserted pursuant to Article VIII, and (viii) otherwise exercise all matters arising rights of the Sellers and otherwise act on behalf of the Sellers under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary in connection with the transactions contemplated by this Agreement shall be binding upon all Sellers and their respective heirsthe Escrow Agreement, estates, executors, personal representatives and successors and permitted assigns in each case as if expressly confirmed the applicable Seller had personally done such act.
(b) All determinations, elections, Consents, notices, agreements and ratified in writing other actions permitted or required to be made by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate the Sellers under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and the transactions contemplated hereby or thereby shall be made exclusively by the Sellers’ Representative on behalf of the Sellers, .
(c) Buyer and the Escrow Agent shall be entitled to rely upon any document or other paper delivered by the Sellers’ Representative as fully as if Sellers were acting on their own behalf, including:
(i) receiving genuine and correct, and (ii) having been duly signed or sent by the Estimated Closing Date Cash Payment Sellers’ Representative, and neither the Buyer nor Escrow Agent shall be liable to any Seller for any action taken or omitted to be taken by Buyer or the Escrow Agent in such reliance.
(d) The Sellers shall, severally and not jointly, based on their pro rata shares in the right to receive the Purchase Price (as specified on Schedule 2.3(b)), indemnify, defend and hold harmless the Sellers’ Representative from and against any Earnout Payment and all losses, claims, damages, liabilities, fees, costs, expenses (including reasonable fees, disbursements and costs of counsel and other professionals and in each case connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement, and taxes paid by the Sellers’ Representative on amounts earned on the Escrow Fund incurred without fraud, gross negligence 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 hereunder and under the Escrow Agreement.
(e) The Sellers’ Representative may resign at any adjustments theretotime, and the Sellers’ Representative may be removed by the unanimous vote of Sellers. In the event that the Sellers’ Representative has resigned or been removed, a new Sellers’ Representative shall be appointed by the vote of Sellers, such appointment to become effective upon the written acceptance thereof by the new Sellers’ Representative; provided that no resignation or removal of the Sellers’ Representative shall be effective until such time as the new Sellers’ Representative has been effectively appointed and notice of such appointment has been delivered to Buyer. The Sellers’ Representative shall at all times be entitled to rely on any directions received from the Sellers. The Sellers’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem reasonably necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Sellers’ Representative) from Buyers shall be entitled to conclusively rely on the opinions and receiving on behalf advice of Sellers any amounts disbursed pursuant such Persons.
(f) Buyer and its Affiliates and Representatives shall be entitled to deal exclusively with the Sellers’ Representative with respect to all matters with respect to the Escrow Agreement and distributing such funds Sellers (in accordance with their capacities as such) arising under or related to this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any of the transactions contemplated hereby. Buyer and its Affiliates and Representatives shall be entitled to rely upon, and shall be fully protected in relying upon, any act or omission of, or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf exercise of Sellers from time to time as power or authority by, the Sellers’ Representative may deem necessary without independent investigation. Neither Buyer nor any of its Affiliates or desirable its Representatives shall have any liability to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other any Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take constituencies for any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent act or omission of the Sellers’ Representative.
(bg) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause shall be entitled to: (i) rely upon any signature believed by the Sellers’ Representative to be done by virtue hereof. Without limiting the generality genuine, and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the foregoingapplicable Seller. Except for fraud or willful misconduct on his part, the Sellers’ Representative shall have full power and authority no liability to interpret all the terms and provisions of any Seller under this Agreement, Agreement or the Escrow Agreement and for any other Seller Ancillary Agreement and to consent to any amendment action or waiver hereof or thereof omission by the Sellers’ Representative on behalf of all Sellers such Seller. The powers, immunities and their successors. Buyers and rights to indemnification granted to the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
hereunder: (cA) The grant of authority provided for in this Section 13.7 (i) is are coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of either any Seller and shall be binding on any successor thereto, and (iiB) shall survive the delivery of an assignment by any distribution from such holder of the whole or any fraction of his, her or its interest in the Escrow AgentFund.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal Logistics Holdings, Inc.)
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints VPM ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ as “Sellers’ Representative” to act as such Seller’s the initial true and lawful agent and attorney-in-fact and agent and authorizes (the “Sellers’ Representative, acting for such Seller ”) of Sellers with full authority and power of substitution to act in such Seller’s the name, place and steadstead of such Sellers with respect to the consummation of the transactions contemplated hereunder and under the Escrow Agreement. Further, ▇▇▇▇▇▇▇’ Representative has full power and authority, on behalf of each Seller and his, her or its successors and assigns, to:
(i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by ▇▇▇▇▇▇▇ in any connection herewith;
(ii) execute and deliver and receive deliveries of all capacitiesagreements, to do amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and perform every act and thing other documents required or permitted to be done given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;
(iii) receive any amounts due or to be paid to Sellers hereunder or under the Escrow Agreement;
(iv) allocate among Sellers and distribute and pay to Sellers any amount to be paid to Sellers or to be paid to Sellers’ Representative on behalf of Sellers hereunder and delivery of wire instructions to Purchaser in connection with the foregoing;
(v) allocate among Sellers and distribute and pay to Sellers any amount to be paid to Sellers or to be paid to Sellers’ Representative on behalf of Sellers under the Escrow Agreement, including, solely for internal allocation purposes among Sellers, adjusting the amount of the Escrow Fund to be received by any Seller for any amounts deducted therefrom in connection with a breach or inaccuracy of any representation or warranty made severally (but not jointly) by such Seller, and delivery of wire instructions to the Escrow Agent in connection therewith;
(vi) authorize delivery to any Purchaser Indemnified Party of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims brought by any Purchaser Indemnified Party for Losses hereunder;
(vii) object to deliveries of the Escrow Fund or any portion thereof for Losses hereunder;
(viii) act on behalf of Sellers in all matters relating to ARTICLE VII of this Agreement, including agreeing to, negotiating, entering into settlements and compromises of, and assuming the defense of, indemnification claims and initiating claims and complying with Orders with respect to such indemnification claims, and to take all matters arising under this Agreement, actions necessary or appropriate in the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by judgment of Sellers’ Representative for the accomplishment of the foregoing;
(ix) deliver or cause to be delivered to Purchaser at the Closing certificates representing the Purchased Securities to be sold by such Seller hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall ;
(x) take any and all actions which it believes are that may be necessary or appropriate under this Agreementdesirable, as determined by Sellers’ Representative in its sole discretion, in connection with the amendment of the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vixi) taking give and receive notices and communications;
(xii) receive service of process in connection with any indemnification claims under this Agreement; and
(xiii) take any and all other actions and do any and all other things necessary or appropriate in the judgment of the Sellers’ Representative on behalf of any or all Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of in connection with this Agreement, the Escrow Agreement Agreement, and the other Seller Ancillary Agreements transactions contemplated hereby and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativethereby.
(b) Each Purchaser shall be entitled to deal exclusively with Sellers’ Representative on behalf of any Seller grants unto said attorney-in-fact with respect to all matters relating to this Agreement and agent full power the Related Agreements and authority to do the transactions contemplated hereunder and perform each thereunder. Purchaser, and every act any other Person, may conclusively and thing necessary absolutely rely, without inquiry and without further evidence of any kind whatsoever), upon any consent, approval or desirable to be done in connection with action of Sellers’ Representative as the matters described aboveconsent, approval or action, as fully the case may be, of each Seller individually and all Sellers as a group in all matters referred to all intents herein, and purposes as such each Seller might or could do in person, hereby ratifying and confirming confirms all that Sellers’ Representative may lawfully shall do or cause to be done by virtue hereofof its appointment as Sellers’ Representative.
(c) Each Seller hereby consents and agrees to all actions or inactions taken or omitted to be taken by Sellers’ Representative under this Agreement and hereby agrees to indemnify and hold harmless Sellers’ Representative from and against all damages, Losses, Liabilities, charges, penalties, costs and expenses (including court costs and legal fees and expenses) incurred in any Proceeding between any such Person or Persons and Sellers (or any of them) or between any such Person or Persons and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions of Sellers’ Representative (except for actions or inactions resulting from the willful malfeasance or gross negligence of Sellers’ Representative). Without limiting the generality of the foregoing, Sellers’ Representative shall have full power the right to retain legal counsel and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement advisors and to consent incur such fees as Sellers’ Representative deems reasonable and necessary in the exercise of its responsibilities hereunder and to any amendment seek payment or waiver hereof or thereof on behalf of all reimbursement from Sellers for such fees and their successors. Buyers expenses, including solely with respect to the internal relationship among Sellers’ Representative and Sellers setting off such fees and expenses against amounts otherwise payable to Sellers under this Agreement and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative Agreement; for any notice contemplated by this Agreementthe avoidance of doubt, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for nothing in this Section 13.7 (i) is coupled with an interest 1.5 shall put Purchaser and is being granted, its affiliates in part, as an inducement to Buyers to enter into a less favorable position than if this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentdid not contain this Section 1.5.
(d) Sellers’ Representative shall not have by reason of this Agreement may resign upon 90 days prior written notice thereof (the “Resignation Notice”) to Purchaser and each Seller; provided that a fiduciary relationship in respect of either Seller. successor Sellers’ Representative shall not have been duly appointed pursuant to this Section 1.5(d) prior to the retiring Sellers’ Representative’s resignation. Upon receipt of the Resignation Notice, a majority of Sellers (based on their respective ownership of Purchased Securities prior to the Closing) shall appoint a successor Sellers’ Representative. If no successor Sellers’ Representative shall have been appointed by ▇▇▇▇▇▇▇, and shall have accepted such appointment, within 60 days after delivery of the Resignation Notice, then the Sellers’ Representative wishing to resign shall, on behalf of Sellers, appoint a successor Sellers’ Representative, which shall be liable to either Seller for any action taken or omitted by Seller. Upon the acceptance of its appointment as Sellers’ Representative hereunder or under any other document hereunderby a successor Sellers’ Representative, or in connection therewith, except that such successor Sellers’ Representative shall not succeed to and become vested, effective no earlier than 90 days after delivery of the Resignation Notice, with all the rights and duties of the retiring Sellers’ Representative, and the retiring Sellers’ Representative shall be relieved discharged from its duties and obligations hereunder. After the retiring Sellers’ Representative’s resignation hereunder as Sellers’ Representative, the provisions of this Agreement shall inure to its benefit as to any Liability imposed actions taken or omitted to be taken by Law for actual fraud, gross negligence or willfulit while it was Sellers’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Elite Education Group International LTD)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as “the Sellers’ Representative” to act Representative as such Seller’s of the date hereof, with power of designation and assignment as its true and lawful attorney-in-fact and agent with full power of substitution, to act solely and authorizes exclusively on behalf of, and in the name of, such Seller, with the full power, without the consent of such Seller, to exercise as the Sellers’ RepresentativeRepresentative in its sole discretion deems appropriate, acting for the powers that such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done could exercise hereunder with respect to all matters arising under this Agreement, of its rights and obligations and to take all actions with respect thereto necessary or appropriate in the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by judgment of the Sellers’ Representative hereunder, under in connection with this Agreement and the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each Agreement. The appointment of them. the Sellers’ Representative is coupled with an interest and shall take be irrevocable by any and all actions which it believes are necessary Seller in any manner or appropriate under this Agreement, the Escrow Agreement or for any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or reason. The Buyer shall be entitled to rely exclusively upon any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution notices and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf acts of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable relating to fulfill the interests Sellers’ rights and purposes obligations hereunder as being legally binding acts of this Agreementeach Seller individually and collectively, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking Buyer shall deliver any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary notice required or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required permitted hereunder to be delivered to either Sellerthe Sellers to the Sellers’ Representative. Each Seller agrees not to institute any Proceeding against the Buyer alleging that the Sellers’ Representative did not have the authority to act as the Sellers’ Representative on behalf of such Seller in connection with any action, omission or execution. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) action with respect to its rights and obligations hereunder without the prior express written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorneyThe Sellers’ Representative will serve without compensation, but will be reimbursed on a current basis from the Sellers (in proportion to their respective Pro-in-fact Rata Shares) for any expenses and agent full power and authority to do and perform each and every act and thing necessary fees incurred or desirable anticipated to be done incurred without gross negligence on the part of the Sellers’ Representative and arising out of or in connection with the matters described above, as fully to all intents and purposes as such Seller might acceptance or could do in person, hereby ratifying and confirming all that administration of the Sellers’ Representative may lawfully do or cause to be done Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel, accountants and other professionals and experts retained by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerRepresentative.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either any Seller for any action act done or omitted under this Agreement or the Escrow Agreement as the Sellers’ Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Seller, severally (in proportion to their respective Pro-Rata Shares) and not jointly, shall indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless from and against any Losses (each, a “Representative Loss”) arising out of or in connection with any actions taken or omitted to be taken by the Sellers’ Representative hereunder or under the Escrow Agreement, including any other document hereunder, or in connection therewith, except that amounts paid by the Sellers’ Representative shall not be relieved on behalf of the Sellers in accordance with this Agreement, in each case as such Representative Loss is incurred or suffered; provided, that in the event it is finally adjudicated that a Representative Loss or any Liability imposed portion thereof was primarily caused by Law for actual fraud, the gross negligence or willfulbad faith of the Sellers’ Representative, the Sellers’ Representative will reimburse the Sellers the amount of such indemnified Representative Loss attributable to such gross negligence or bad faith.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Leucadia National Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM hereby consents to (i) the appointment of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as “the Sellers’ Representative” to act Representative hereunder and as such Seller’s true and lawful the attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellerssuch Seller, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf by Sellers’ Representative of any and all Sellers pursuant to Article XI;
(iv) initiating actions and the making of any decisions required or taking any action permitted by, or with respect to any suitto, action or proceeding arising out of or related to this Agreement;
, the Related Agreements and the transactions contemplated hereby and thereby, including, without limitation, the exercise of the power to (vA) executing and performing the Escrow Agreement agree to execute any amendments to or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes 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 compromises of and comply with orders of courts and awards of arbitrators with respect to any indemnification claims under Article X, (D) resolve any such indemnification claims and authorize delivery to any Buyer Indemnified Party in accordance with the other Seller Ancillary Agreements and engaging agents and representatives Escrow Agreement from the Indemnity Escrow Account an amount equal to any disbursements to resolve any such indemnification claim, (including accountants and legal counselE) make any representations, warranties or certifications pursuant to assist in connection herewith and therewith;
(vii) taking any and all action this Agreement on behalf of such Seller, (F) accept receipt of such Seller’s Pro Rata Portion of the Initial Sellers from time Payment on behalf of such Seller in full satisfaction of Buyer’s obligation to time as make such payment hereunder and (G) take all actions necessary in the judgment of Sellers’ Representative may deem necessary incidental to or desirable to make or enter into any waiverfor the accomplishment of the foregoing and all of the other terms, amendment, agreement, opinion, certificate or other document contemplated under conditions and limitations of this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of Related Agreements and the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativetransactions contemplated hereby and thereby.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to shall be done in connection with bound by the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that actions taken by Sellers’ Representative may lawfully do exercising the rights granted to him by this Agreement, the Related Agreements or cause 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 done by virtue hereof. Without limiting entitled to any fee, commission, compensation or reimbursement for the generality performance of his services hereunder or under the foregoingRelated Agreements from Parent, Buyer or Sellers or from the cash constituting the Initial Sellers Payment.
(c) Sellers’ Representative shall have full power and authority the sole discretion to interpret all use the terms and provisions of this Agreement, the Escrow Agreement and Expense Funds to pay any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to expenses incurred by Sellers’ Representative for in his capacity as Sellers’ Representative, including, without limitation, any notice contemplated by this Agreementattorneys’, the Escrow Agreement or any accountants’ and other Seller Ancillary Agreement to be given to either Sellerexperts’ fees. A successor to Once Sellers’ Representative may be chosen by a majority determines, in interest of Sellershis sole discretion, provided that notice thereof is given promptly by the successor Sellers’ Representative will not incur any additional expenses in his capacity as Sellers’ Representative, Sellers’ Representative will distribute, at the sole expense of Sellers’ Representative, to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedSellers, in partaccordance with their respective Pro Rata Portions, as an inducement the remaining unused Expense Funds, if any, without interest; provided, however, that Sellers’ Representative shall not be required to Buyers return any amount to enter into this Agreement and shall any Seller if the amount such Seller would otherwise receive would be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and less than Fifty Dollars (ii) shall survive any distribution from the Escrow Agent$50).
(d) Sellers’ Representative Representative, acting in such capacity, shall not have by reason of no obligations to any other party to this Agreement a other than as expressly set forth in this Agreement, including as agent, fiduciary relationship in respect or trustee of either or for any Seller. Sellers’ Representative shall not be liable to either any Seller for any action taken or omitted by Sellers’ Representative hereunder or to be taken under any other document hereunder, or in connection therewithwith this Agreement, the Related Agreements or the other documents contemplated by this Agreement, and each Seller hereby waives and shall not assert any right, claim or cause of action based thereon, except that to the extent of liabilities resulting primarily from Sellers’ Representative’s gross negligence or willful misconduct (as determined in a final non-appealable judgment by a court of competent jurisdiction) in connection with his duties expressly set forth herein.
(e) If Sellers’ Representative shall not die, become disabled, resign or otherwise be relieved unable to fulfill his responsibilities hereunder, Sellers shall appoint a new Sellers’ Representative as soon as reasonably practicable by written consent by sending notice and a copy of any Liability imposed the duly executed written consent appointing such new Sellers’ Representative to Buyer. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Law for actual fraud, gross negligence or willfulBuyer.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes In order to efficiently administer (i) the determination and appoints VPM payment of the 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 designate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as their representative (the “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes ”).
(b) Sellers, by executing this Agreement, shall authorize the Sellers’ RepresentativeRepresentative (i) to make all decisions relating to the determination of the Closing Date Purchase Price, acting for such Seller the Final Closing Statement of Net Working Capital and in such Seller’s namethe Working Capital Adjustment, place and stead(ii) to make all decisions relating to the distribution of any amounts payable or distributable to or from Sellers hereunder, in accordance with this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any and all capacitiescondition to the obligations of the Company or the Sellers to consummate the Contemplated Transactions, to do and perform every act and thing required or permitted to be done the defense and/or settlement of any Proceedings with respect to all matters arising under this Agreement, which Buyer or the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall Company may be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed entitled to be indemnified pursuant to the Escrow Agreement Section 10.2 hereof, (iv) to give and distributing such funds in accordance with receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as applicableis 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 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 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 no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(e) By approving this Agreement, Sellers agree that:
(i) Buyer and 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 the Working Capital Adjustment or the settlement of any claims for indemnification by Buyer or the Company pursuant to Section 10.2 hereof or any other actions 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) participating all actions, decisions and instructions of the Sellers’ Representative in accordance with this Section 11.4 shall be conclusive and binding upon all of the adjustmentSellers and no Seller shall have any cause of action against the Sellers’ Representative for any action taken, objectiondecision made or instruction given by the Sellers’ Representative under this Agreement, resolution and other processes except for fraud or procedures pursuant to willful breach of this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XIthe Escrow Agreement by the Sellers’ Representative;
(iii) initiatingthe provisions of this Section 11.4 are independent and severable, consenting to, compromising are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or settling all indemnity claims remedies that any Seller may have in connection with the Contemplated Transactions or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XIthe Escrow Agreement;
(iv) initiating the provisions of this Section 11.4 shall be binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement or taking any action with respect the Escrow Agreement to any suita Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, action whether pursuant to testamentary disposition, the laws of descent and distribution or proceeding arising out of or related to this Agreementotherwise;
(v) executing the fees and performing expenses to be paid at or prior to Closing (either through available cash of the Escrow Agreement Company or from the Closing Date Purchase Price) shall include the sum of $300,000 to be paid to the Sellers’ Representative 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 Seller Ancillary Agreement in accordance with its terms;
(vi) taking professional advisors retained by the Sellers’ Representative and any and all actions on behalf Working Capital Adjustment owed after Closing by Sellers pursuant to the terms of Sellers from this Agreement). From time to time as after the Closing, Sellers’ Representative may deem necessary 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 desirable to fulfill the interests and purposes of this Agreementasserted by or on behalf of, Sellers hereunder or under the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) final distribution to assist 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 connection herewith and therewith;
(vii) taking any and all action on behalf accordance with the Sellers’ ownership of Sellers from time to time as Shares; provided, however, that if the Sellers’ Representative may deem necessary incurs costs and expenses disproportionately due to a Seller’s breach of his, her or desirable its representations and warranties made by such Seller in one of the Seller deliveries as to make himself, herself or enter into any waiveritself, amendmentor his, agreementher or its Shares or Options, opinion, certificate or other document contemplated under this Agreement, such breaching Seller shall reimburse the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either SellerSellers’ Representative for the additional costs and expenses disproportionately incurred; and
(ixvi) receiving they will indemnify and hold harmless the Sellers’ Representative, severally and jointly, from and against any and all notices required damages 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, or any related agreement or instrument or any action taken or omitted to be delivered to either Seller. No Seller may take any of taken by the actions set forth Sellers’ Representative under or in paragraphs (i) through (ix) of this Section 13.7(a) without connection herewith, unless such damages resulted solely from the prior written consent bad faith or willful misconduct of the Sellers’ Representative.
(bf) Each Seller grants unto said attorney-in-fact All fees and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with expenses reasonably incurred by the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause in excess of $300,000 shall be paid from any funds otherwise due to be done by virtue hereof. Without limiting Sellers (including funds due to the generality of Sellers from the foregoing, Sellers’ Representative shall have full power Escrow and authority to interpret all eligible for distribution in accordance with the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized Agreement) in proportion to give notices only to the Sellers’ Representative for any notice contemplated by this Agreementownership of the Shares and if no funds are available from the Escrow, then directly from Sellers in proportion to the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen ownership of the Shares received by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Standex International Corp/De/)
Sellers’ Representative. (a) Each Seller irrevocably constitutes of the Sellers hereby ----------------------- appoints ▇▇▇▇▇▇ Capital Corporation ("Sellers' Representative") or its ----------------------- designee (as appointed in writing), as the agent, proxy, and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-attorney- in-fact for the Sellers for all purposes under this Agreement (including without limitation full power and agent and authorizes authority to act on the Sellers’ Representative' behalf) to take any action, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, should it elect to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreementso in its sole discretion, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving to consummate the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document transactions contemplated under this Agreement, (ii) in the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required event of such consummation, to 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 Individual Seller's Closing Payment Percentage, net of the attributable Seller's Percentage of expenses, relating to the Shares to be delivered sold by either 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; and
(ix) receiving all notices required 's Closing Payment Percentage, net of the attributable Seller's Percentage of expenses, relating to the Options to be delivered sold by such Individual Seller hereunder, (iii) to either Seller. No Seller may take any receive and pay out of the actions set forth in paragraphs (i) through (ix) Cash Consideration the Seller's Percentage attributable to each Seller of this Section 13.7(a) without the prior written consent all expenses incurred by or on behalf of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done Sellers in connection with the matters described abovetransactions contemplated by this Agreement and to pay to each of the Sellers his or its Closing Payment Percentage, as fully net of the attributable Seller's Percentage of expenses, provided, that, each of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP. and the Company -------- ---- may, pursuant to this Section 14.6, pay to the Individual Sellers on whose behalf they receive Cash Consideration under clause (ii) hereof such Individual Sellers' Closing Payment Percentage, net of the attributable Seller's Percentage of expenses, subject to any 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 or all intents 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 purposes as settle any or all such Seller might claims in its sole discretion on behalf of any or could 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 (v) to execute and deliver, should it elect to do so in personits sole discretion, hereby ratifying on behalf of any or all of the Sellers any or all amendments to this Agreement and confirming to take any or all that Sellers’ Representative may lawfully do or cause other actions to be done taken by virtue hereofor on behalf of any or all of the Sellers and exercise any 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 under clause (v) above on behalf of Sellers (the "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 ▇▇▇▇▇▇ ▇. Without limiting ▇▇▇▇▇▇, (b) the generality ----------- 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 any Seller under this Section 14.6 or otherwise in its capacity as Sellers' Representative and (c) any settlement entered into or other action taken by any Individual Seller shall be valid only to the extent expressly permitted by this 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 Sellers' Representative or any BCC Seller. Each of the Sellers hereby agrees not to assert any claim against, and to indemnify and hold harmless the Sellers' Representative from and against any and all Losses incurred by, the Sellers' Representative or any of its partners, directors, officers, employees, agents, stockholders, consultants, investment bankers, representatives or controlling persons, or any Affiliate of any of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only relating to Sellers’ ' Representative's capacity as Sellers' Representative for any notice contemplated by this Agreement, the Escrow Agreement other than such claims or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution Losses resulting from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, ' Representative's gross negligence or willfulwilful misconduct."
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Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “At the Closing, without further act of any Seller, the Sellers’ Representative” to act Representative is hereby irrevocably appointed as such Seller’s true agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting (with full power of substitution for such Seller and in such each Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement ) for and on behalf of Sellersthe Seller Parties, as fully as if Sellers were acting on their own behalfto give and receive notices and communications, including:
to authorize delivery to any Indemnified Party of cash in satisfaction of claims to any Indemnified Party for any breach of a representation or warranty in Article III of this Agreement or breach of covenant or agreement to be performed by the Seller Parties contained in this Agreement to be performed at or prior to Closing (a “Buyer Claim”); (i) receiving to object to such deliveries, to 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 any such waiver or amendment that is materially and disproportionately adverse to any Seller shall also require the Estimated Closing Date Cash Payment written consent of such Seller, as applicable), (ii) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing and in the defense of any Earnout Payment Buyer Claim and any adjustment to the Purchase Price to be made pursuant to Section 2.08 of this Agreement, and (including in each case iii) to take all other actions which under this Agreement may be taken by the Sellers’ Representative and to do or refrain from doing any adjustments thereto) from Buyers and receiving further act or deed on behalf of Sellers any amounts disbursed pursuant such Seller which Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the Escrow Agreement Subject Transactions as fully and distributing completely as such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as could do if personally present. The Sellers’ Representative may deem necessary or desirable resign from such position at any time upon written notice to fulfill Buyer, and shall appoint a replacement Sellers’ Representative on written notice to Buyer. In the interests and purposes event that the Sellers’ Representative does not appoint a replacement within thirty (30) days of this Agreementsuch resignation, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf position of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, be filled by approval of the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either SellerSellers. No Seller may take any bond shall be required of the actions set forth in paragraphs (i) through (ix) 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 of this Section 13.7(a) without the prior written consent Sellers. The death or incapacity of any Seller shall not terminate the agency and power of attorney granted hereby to the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary A decision, act, consent or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality instruction of the foregoing, Sellers’ Representative shall have full power and authority to interpret constitute a decision, act, consent or instruction of all the terms Seller Parties, with respect to the matters set forth in this Section 11.13 and provisions shall be final, binding upon and conclusive with respect to each of this Agreementsuch Seller, and Buyer may rely upon any such decision, act, consent or instruction of the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to 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 notice contemplated 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 AgreementAgreement unless the same is made, given or executed by the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may in its capacity as such, and shall be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by entitled to deal exclusively with the successor Sellers’ Representative on all matters relating to Buyers and the Escrow Agent and to each Sellerthis Agreement.
(c) The grant of authority provided for in this Section 13.7 All reasonable out-of-pocket fees and expenses (iincluding fees payable to counsel, accountants and other professional fees) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive incurred by the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. 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 shall not be liable to either paid by the Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulParties.
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Sellers’ Representative. (a) Each Seller irrevocably constitutes hereby appoints Clean Streak Ventures Holdco, LLC as its, his or her agent and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by as Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if the Sellers were acting on their own behalf, includingrelating to this Agreement and the Transactions:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers to give and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement receive notices and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;communications,
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to receive service of process with respect to any claim under this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;,
(iii) initiating, consenting to agree to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any negotiate, execute and all Sellers pursuant deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to Article XI;this Agreement,
(iv) initiating or taking to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any action with respect other payments pursuant to any suit, action or proceeding arising out the terms of or related to this Agreement;, and receive and disburse such payments to the Sellers,
(v) executing to agree to, negotiate, enter into settlements and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance compromises of, and comply with its terms;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 any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking any all other action, and execute and deliver all actions on behalf of Sellers from time to time additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist appropriate in connection herewith with the Transactions. Such agency and therewith;proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(viib) taking any and all action on behalf of Such agency may be 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 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 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 may deem deems in its sole discretion to be necessary or desirable appropriate in connection with its performance of its 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) Sellers’ Representative shall have the right to make recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the 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 (the “Charges”). 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 have the right to setoff 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 against any distribution to the Sellers.
(d) A decision, act, consent or enter into any waiverinstruction of Sellers’ Representative, including an amendment, agreement, opinion, certificate extension or other document contemplated under waiver of this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any shall constitute a decision of the actions set forth in paragraphs (i) through (ix) Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of this Section 13.7(a) without Sellers’ Representative as being the prior written decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(be) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary All notices or desirable other communications required to be done in connection with made or delivered by Buyer to the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to Sellers shall be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice contemplated by this Agreement, requirements of Buyer to the Escrow Agreement Sellers with respect thereto. All notices or any other Seller Ancillary Agreement communications required to be given made or delivered by any Seller to either Seller. A successor to Buyer shall be made by Sellers’ Representative may be chosen by a majority for the benefit of such Seller(s) and any notices so made shall discharge in interest full all notice requirements of Sellers, provided that notice thereof is given promptly by the successor such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to Buyers and the Escrow Agent their respective Allocation Percentages against and to each Sellerhold 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.
(cg) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall not have by reason incur any liability to any Seller relating to the performance of this Agreement a fiduciary relationship in respect of either SellerSellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall not have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be liable sought to either Seller for 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 taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulgood faith.
Appears in 1 contract
Sellers’ Representative.
(a) Each Seller By virtue of the execution of this Agreement by each of the Sellers, and without further action of any Seller, the Sellers will be deemed to have irrevocably constitutes constituted and appoints VPM appointed ▇▇▇▇▇ ▇. ▇▇▇▇▇ as “Sellers’ Representative” to act ”, and by execution of this Agreement ▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts such appointment, as such Seller’s true agent and lawful attorney-in-fact for and agent and authorizes on behalf of the Sellers’ Representative, acting for such Seller and with full power of substitution, to act in such Seller’s the name, place and stead, in stead of each Seller with respect to this Agreement and the taking by the Sellers’ Representative of any and all capacities, to do actions and perform every act and thing the making of any decisions required or permitted to be done with respect to all matters arising taken by any Seller under this Agreement. Such powers shall include the exercise of the power to: (i) give and receive notices and communications under this Agreement; (ii) receive and pay funds under this Agreement, the Escrow Agreement (iii) prepare and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderdeliver documents, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers certificates and their respective heirsinstruments, estatesand give instructions, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement (iv) authorize or object to claims for payment or indemnification made by Buyer or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with Buyer Indemnitee under this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
ARTICLE 6 and ARTICLE 8; (iiiv) initiating, consenting agree to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf negotiate, enter into settlements and compromises of, and comply with orders of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action courts with respect to any suit, action claims for payment or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement for indemnification made by Buyer or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated Buyer Indemnitee under this Agreement, the Escrow Agreement including pursuant to ARTICLE 6 and ARTICLE 8; (vi) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other Seller Ancillary matters specifically delegated to Sellers’ Representative in this Agreement;
, including pursuant to ARTICLE 6 and ARTICLE 8; and (viiivii) delivering take all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of actions necessary or appropriate in the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent good faith judgment of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with Representative for the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality accomplishment of the foregoing, Sellers’ Representative shall have full . The power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) attorney hereby is coupled with an interest and is being grantedirrevocable, and may be delegated by the Sellers’ Representative. The identity of the Sellers’ Representative and the terms of the agency may be changed, and a successor Sellers’ Representative may be appointed, from time to time (including in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the event of the death, incompetencydisability or other incapacity of the Sellers’ Representative) by the consent of a majority of the Sellers, bankruptcy and any such successor will succeed the Sellers’ Representative as Sellers’ Representative under this Agreement. Amounts paid by or liquidation on behalf of either Seller and ▇▇▇▇▇ to the Sellers’ Representative on behalf of the Sellers shall be binding on any successor thereto, and (ii) shall survive any distribution from treated as received by the Escrow AgentSellers.
(db) The Sellers’ Representative shall will not have by reason of this Agreement a fiduciary relationship in respect of either Seller. be liable for any act done or omitted hereunder as the Sellers’ Representative shall while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be liable conclusive evidence of such good faith. Sellers will indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any Losses incurred without gross negligence 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 hereunder.
(c) Any decision, act, consent or instruction of the Sellers’ Representative will constitute a decision of all Sellers and will be final, binding and conclusive upon each Seller, and Buyer, its Affiliates, any other Buyer Indemnitee, and any other Person may rely upon any decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of each Seller. Buyer, its Affiliates, any other Buyer Indemnitee, and any other Person are hereby relieved from any Liability to either Seller any Person for any action taken or omitted acts done by Sellers’ Representative hereunder or under and any acts done by ▇▇▇▇▇, its Affiliates, any other document hereunderBuyer Indemnitee, and any other Person in accordance with any such decision, act, consent or in connection therewith, except that instruction of the Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulin accordance with this Section 10.12.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM The Sellers, without any further action on the part of any of them, consent to the appointment of Vækstfonden, as the representative of the Sellers (the “Sellers’ Representative” to act ”), as such Seller’s true and lawful the attorney-in-fact for and agent on behalf of each such Seller, and authorizes the taking by the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in Representative of any and all capacities, to do actions and perform every act and thing the making of any decisions required or permitted to be done taken by each Seller under this Agreement, including, without limitation, the exercise of the power to (i) authorize delivery to the Buyer of the Escrow Fund, or 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 handling of all indemnification claims, rights or obligations arising under from and taken pursuant to this AgreementAgreement including, but not limited to, the Escrow Agreement authority and any other Seller Ancillary Agreementpower to receive notices on behalf of the Sellers. All actions taken by Sellers’ Representative hereunder, under Any notice provided to the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and be deemed to have been provided to all the Sellers. The Sellers shall be bound by all actions which it believes are necessary or appropriate under taken by the Sellers’ Representative in connection with this Agreement, and the Buyer, the Company and the Escrow Agreement or any other Seller Ancillary Agreement for and Agent shall be entitled to rely on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent decision of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority The Sellers’ Representative shall incur no liability with respect to do and perform each and every act and thing necessary any action taken or desirable suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be done in connection with genuine and to have been signed by the matters described aboveproper Person (and shall have no responsibility to determine the authenticity thereof), as fully to nor for any other action or inaction, except the Sellers’ Representative’s own willful misconduct or gross negligence. In all intents and purposes as such Seller might or could do in personquestions arising under this Agreement, hereby ratifying and confirming all that the Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting rely on the generality advice of the foregoingcounsel, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller Sellers for any action taken anything done, omitted or omitted suffered in good faith by the Sellers’ Representative hereunder or under based on such advice.
(c) Sellers who in the aggregate hold at least a majority of the Shares prior to the Closing shall have the right at any other document hereundertime to remove the then-acting Sellers’ Representative and to appoint a successor Sellers’ Representative; provided, or in connection therewithhowever, except that neither such removal of the then acting Sellers’ Representative nor such appointment of a successor Sellers’ Representative shall not be relieved effective until the delivery to the Buyer and to the Escrow Agent of executed counterparts of a writing signed by Sellers’ holding such majority interest in the Shares with respect to such removal and appointment, 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 Liability imposed by Law for actual fraud, gross negligence or willfulsuccessor Sellers’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Micro Circuits Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM Equity Holder hereby designates Logistics Holding as the “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in execute any and all capacitiesinstruments or other documents on behalf of such Equity Holder, and to do any and perform every act and thing all other acts or things on behalf of such Equity Holder, which the Sellers’ Representative may deem necessary or advisable, or which may be required or permitted pursuant to be done with respect to all matters arising under this Agreement, the Escrow Agreement or otherwise, in connection with the consummation of the transactions contemplated hereby or thereby and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderthe performance of all obligations hereunder or thereunder at or following the Closing, under including, but not limited to, the exercise of the power to: (i) execute the Escrow Agreement on behalf of each Equity Holder, (ii) act for each Equity Holder with respect to any Purchase Price Adjustment, (iii) give and receive notices and communications to or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under from Buyer and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other Seller Ancillary matters contemplated hereby or thereby (except to the extent that this Agreement for and on behalf or the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such Equity Holders individually), (iv) authorize the release or delivery to Buyer of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving all or a portion of the Estimated Closing Date Cash Payment Escrow Amount or Holdback Amount in satisfaction of indemnification claims by Buyer or any Earnout Payment other Buyer Indemnified Party pursuant to Article X (including by not objecting to such claims), (v) agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, (A) indemnification claims by Buyer or any other Buyer Indemnified Party pursuant to Article X or (B) any dispute between any Buyer Indemnified Party and any such Equity Holder, in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant relating to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
and (iivi) participating take all actions necessary or appropriate in the adjustment, objection, resolution judgment of the Sellers’ Representative for the accomplishment of the foregoing. The Sellers’ Representative shall have authority and other processes or procedures pursuant power to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions act on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action each Equity Holder with respect to any suitthe disposition, action settlement or proceeding arising out other handling of or related to all claims under this Agreement;
(v) executing Agreement and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and all rights or obligations arising under this Agreement and the other Seller Ancillary Agreements Escrow Agreement. The Equity Holders shall be bound by all actions taken and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as documents executed by the Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under in connection with this Agreement and the Escrow Agreement, the Escrow Agreement and Buyer and other Buyer Indemnified Parties shall be entitled to rely on any action or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent decision of the Sellers’ Representative. The Sellers’ Representative shall receive no compensation for its services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each Equity Holder.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done In performing the functions specified in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken Equity Holder in the absence of gross negligence or omitted by willful misconduct on the part of the Sellers’ Representative. Each Equity Holder shall severally (based on each such Equity Holder’s Pro Rata Percentage), and not jointly, indemnify and hold harmless the Sellers’ Representative hereunder from and against any Loss incurred without gross negligence or under any other document hereunder, willful misconduct on the part of the Sellers’ Representative and arising out of or in connection therewith, except that with the acceptance or administration of its duties hereunder. If not paid directly to the Sellers’ Representative shall by the Equity Holders, such Losses may be recovered by the Sellers’ Representative from the Escrow Amount or Holdback Amount otherwise distributable to the Equity Holders (and not be relieved distributed or distributable to any Buyer Indemnified Party or subject to a pending indemnification claim of any Liability imposed by Law for actual fraudBuyer Indemnified Party) following the expiration of all Claims Periods and final resolution of all claims made prior to the expiration thereof pursuant to the terms hereof and of the Escrow Agreement, gross negligence or willfulat the time of distribution, and such recovery will be made from the Equity Holders according to their respective Pro Rata Percentage.
Appears in 1 contract
Sellers’ Representative. The Sellers’ Representative is hereby approved by the Sellers (and is to be approved pursuant to the Letter of Transmittal) to serve as the representative of the 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 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) Each Seller irrevocably constitutes 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 appoints VPM as “Sellers’ Representative” performance of this Agreement, (c) to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for disburse any funds received hereunder to such Seller and each other Seller, (d) to execute and deliver any certificates representing the Company Group’s equity interests and execution of such further instruments as Purchaser 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 such Seller’s nameconnection herewith, place (g) to negotiate, settle, compromise and stead, in 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 capacitiesrights which such Seller is, or Sellers collectively are, permitted or required to do and perform every act and thing required or permitted to be done with respect to all matters arising exercise under this Agreement, . Each of the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers shall agree to reimburse the Sellers’ Representative hereunder, under for any fees and expenses incurred by the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary in its capacity as agent, proxy or appropriate under this Agreement, attorney in fact of the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance connection with this Agreement or the Escrow Agreementtransactions contemplated herein. At the Closing, as applicable;
the Purchaser shall deliver to the Sellers’ Representative an amount equal to $1,000,000 (iithe “Sellers’ Representative Expense Fund”) participating to be held in trust to cover and reimburse the adjustment, objection, resolution fees and other processes or procedures pursuant to expenses incurred by the Sellers’ Representative for its obligations in connection with this Agreement and the transactions contemplated herein. Any balance of the Sellers’ Representative 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 either Seller Ancillary Agreementinstruction of the Sellers’ Representative hereunder shall constitute a decision, including pursuant to Articles III act, consent or XI;
(iii) initiatinginstruction of all Sellers and shall be final, consenting tobinding and conclusive upon each of such Sellers, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating Indemnified Parties may rely upon any such decision, act, consent or taking 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 action with respect liability to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or Person for any other Seller Ancillary Agreement acts done by them in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary such decision, act, consent or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent instruction of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
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 Seller irrevocably constitutes and appoints VPM appoint (the “Appointment”) ▇▇▇▇▇ as “the Representative of the APA Sellers’ Representative” to act , as such the APA Seller’s true agent and lawful attorney-in-fact and agent and authorizes for all purposes set forth in this Agreement (the “Sellers’ Representative, acting for such Seller ”) including the full power and in such Seller’s name, place and stead, in any and all capacities, authority to do and (i) perform every act and thing required or permitted the transactions contemplated hereunder to be done with respect to all matters arising performed by the APA Sellers under this Agreement; (ii) disburse any funds received by the Seller; (iii) execute and deliver on behalf of 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, but not all APA Sellers); (vii) receive service of process and/or notice from a Buyer Indemnified Person on behalf of the Escrow APA Seller(s) in connection with any indemnification claims under this Agreement; and (viii) interpret the terms of this Agreement and any other Seller Ancillary Agreementrelated 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 actions taken decisions and acts by the Sellers’ Representative hereunder, within his authority under the Escrow Agreement or under any other Seller Ancillary Agreement this Section 6.12.1 shall be binding upon all of the APA Sellers, and no APA Sellers and their respective heirsshall have the right to object, estatesdissent, executorsprotest or otherwise contest the same. The Sellers’ Representative ▇▇▇▇▇▇ accepts the appointment as Sellers’ Representative pursuant to this Agreement effective on the date hereof, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each accordance with the terms set forth in this Section 6.12.
1. The appointment of them. 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 and other action or assert or compromise any claim in connection with all actions which it believes are necessary or appropriate under matters relating to this Agreement, the Escrow Agreement or other Ancillary Agreements and any of the transactions contemplated hereby and thereby, including the receipt and delivery at Closing of certificates and other Seller Ancillary Agreement for documents and on the giving and receipt of notices by and behalf of the APA Sellers for all purposes under Section 7 and otherwise under and in relation to this Agreement and the other Ancillary Agreements.
6.12.3 The Sellers’ Representative will have no Liabilities to the APA Sellers for any act done or omitted under this Agreement as the Sellers’ Representative while acting in good faith and not in a manner constituting fraud, as fully as if Sellers were acting on their own behalfgross negligence or willful misconduct, including:
(i) receiving the Estimated Closing Date Cash Payment and any act done or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed omitted pursuant to the Escrow Agreement advice of counsel will be conclusive evidence of such good faith. Each APA Seller (other than the Seller) shall, jointly and distributing such funds in accordance severally with this Agreement or each other APA Seller (other than the Escrow AgreementSeller), as applicable;
(ii) participating in indemnify and hold and save harmless the adjustment, objection, resolution Sellers’ Representative from and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking against any other actions on behalf Losses of any and all Sellers pursuant to Article XI;
nature whatsoever (ivincluding reasonable legal fees) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing that the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary sustain or desirable to fulfill incur as a result of any action or omission taken by the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary in relation to the Appointment and performance of such role, save for any such Losses attributable to the fraud or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent intentional misconduct of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with 6.12.4 If the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do becomes unable to perform the Sellers’ Representative’s responsibilities or cause to be done by virtue hereof. Without limiting resigns from such position, the generality of the foregoing, Sellers’ Representative shall have full power select another SPA Seller(s) or principal or beneficiary of a SPA Seller to fill such vacancy and authority to interpret all such substituted representative shall: (i) be the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by all purposes of this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, ; and (ii) shall survive any distribution from exercise the Escrow Agentrights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Sellers’ Representative under this Agreement.
(d) 6.12.5 The signature of the Sellers’ Representative shall not have be deemed to be the signature of all APA Sellers, and each APA Seller shall be bound by reason the terms of any documents and agreements executed and delivered by Sellers’ Representative on their behalf as though they were actual signatories thereto.
6.12.6 ▇▇▇▇▇ is entitled to deal exclusively with the Sellers’ Representative on all matters relating to the APA Sellers with respect to this Agreement a fiduciary relationship in respect and the other Ancillary Agreements, including under Section 7. Buyer and all other Persons shall be entitled to rely, without any investigation or inquiry, upon all actions taken by ▇▇▇▇▇▇▇’ Representative as having been taken upon the authority of either Sellerthe APA Sellers. Any action by Sellers’ Representative shall be conclusively deemed to be the action of the APA Sellers, and Buyer shall not be liable have any liability or responsibility to either any APA Seller for any action taken in reliance thereon. Buyer will not have any liability or omitted by obligation arising out of the acts or omissions of Sellers’ Representative hereunder or under any other document hereunderdisputes between or among the APA Sellers and Sellers’ Representative. Buyer may rely entirely on its dealings with, or in connection therewithand notices to and from, except that Sellers’ Representative shall not be relieved 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 and all Losses that they may suffer or sustain as a result of any Liability imposed claim by Law for actual fraudany Person that an action taken by the Sellers’ Representative on behalf of the APA Sellers is not binding on, gross negligence or willfulenforceable against, the APA Sellers.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes By virtue of the approval and appoints VPM adoption of this Agreement by the requisite consent of the Sellers, each of the Sellers shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s true its agent and lawful attorney-in-fact and agent and authorizes (the “Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement ”) for and on behalf of Sellersthe Sellers to give and receive notices and communications, as fully as if Sellers were acting on their own behalfto authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, including:
to object to such payments, 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 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 other claim by any Indemnified Party against any Seller or by any such Seller against any Indemnified Party or any dispute between any Indemnified Party and any such Seller, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) receiving necessary or appropriate in the Estimated Closing Date Cash Payment judgment of the Sellers’ Representative for the accomplishment of the foregoing or any Earnout Payment (including in each case any adjustments theretoii) from Buyers and receiving on behalf specifically mandated by the terms of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in . Such agency may be changed by the adjustment, objection, resolution and other processes or procedures pursuant Sellers with the right to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf at least a majority of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out the Pro Rata Portions of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers Fund from time to time as time. Notwithstanding the foregoing, the Sellers’ Representative may deem necessary resign at any time by providing written notice of intent to resign to the Sellers, which resignation shall be effective upon the earlier of (A) thirty (30) days following delivery of such written notice or desirable to fulfill (B) the interests and purposes appointment of this Agreement, a successor by the holders of a majority in interest of the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either SellerFund. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent bond shall be required of the Sellers’ Representative, and the Sellers’ Representative shall not receive any compensation for its services.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either any Seller for any action taken act done or omitted by hereunder as Sellers’ Representative hereunder while acting in good faith, even if such act or under any other document hereunder, or in connection therewith, except that omission constitutes negligence on the part of such Sellers’ Representative. The Sellers’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Sellers’ Representative may engage attorneys, accountants and other professionals and experts. The Sellers’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Sellers’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. The Sellers shall severally (and not jointly and severally) indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any loss, liability or expense incurred on the part of the Sellers’ Representative (so long as the Sellers’ Representative was acting in good faith in connection therewith) and 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. In the event that the Sellers receive a written notice from the Sellers’ Representative of expenses either incurred or expected to be incurred by the Sellers’ Representative arising out of or in connection with the acceptance or administration of the Sellers’ Representative’s duties hereunder, then each Seller agrees to advance or reimburse, as applicable, such Seller’s Pro Rata Portion of such expenses to the Sellers’ Representative within thirty (30) days of receiving such notice. In the event that the Sellers’ Representative determines that any portion of advance payments will not be relieved needed or utilized by the Sellers’ Representative, the Sellers’ Representative will promptly return such advanced payments to the Sellers (based on each Seller’s Pro Rata Portion). A decision, act, consent or instruction of any Liability imposed by Law for actual fraudthe Sellers’ Representative, gross negligence including an amendment, extension or willfulwaiver of this Agreement pursuant to Sections 7.2 or 7.3 hereof, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers.
(c) Each Seller hereby agrees to promptly provide written notice to the Sellers’ Representative in the event that such Seller’s address, phone number or primary email address changes following Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nabriva Therapeutics PLC)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Until the delivery of written notice of appointment of a successor Sellers’ Representative” to act Representative under this Section 12.14 (which shall be at the sole discretion via a written consent of a majority in interest of the Sellers based on their pre-Closing equity ownership, provided, however, that if Hsiao is incapacitated or deceased, then Hsiao’s equity will be excluded from such consent-related calculation unless Hsiao has a duly appointed legal representative at the time any such consent is approved), Sellers’ Representative shall serve as such Seller’s true agent and lawful attorney-in-fact for each Seller, for and agent on behalf of each Seller, with full power and authorizes Sellers’ Representativeauthority to represent, acting for such in its sole reasonable discretion, each Seller and in such Seller’s nameheirs, place executors, personal representatives, beneficiaries, successors and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done assigns with respect to all matters arising under this Agreement and, except as otherwise provided in this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All all actions taken by Sellers’ Representative hereunder, under the Escrow this Agreement or under any other Seller Ancillary Agreement shall will be binding upon all Sellers each Seller and their respective such Seller’s heirs, estates, executors, personal representatives and representatives, beneficiaries, successors and permitted assigns as if expressly ratified and confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, and except as otherwise provided in this Agreement, Sellers’ Representative shall have has full power and authority authority, on behalf of each Seller and such Seller’s heirs, executors, personal representatives, beneficiaries, successors and assigns, to interpret all the terms and provisions of this Agreement, the Escrow Agreement to dispute or fail to dispute any claim under this Agreement, to negotiate and compromise any dispute that may arise under this Agreement, to sign any releases or other Seller Ancillary Agreement documents with respect to any such dispute, and to consent agree to and sign any amendment amendments, waivers, or waiver hereof or thereof on behalf other documents in connection with the consummation of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice transactions contemplated by this Agreement. A Seller will be deemed a party or a signatory to any contract, document, instrument or certificate for which Sellers’ Representative signs on behalf of such Seller. All decisions, actions and instructions by Sellers’ Representative, including the Escrow Agreement defense or settlement of any claims for which Sellers may be required to indemnify the Buyer Indemnified Party pursuant to ARTICLE XI, will be conclusive and binding on each Seller, and no Seller has the right to object, dissent, protest or otherwise contest the same. Each Seller shall pay and indemnify and hold harmless the Buyer 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 its Affiliates that an action taken by Sellers’ Representative on behalf of Sellers is not binding on, or enforceable against, any Seller. Except as otherwise provided in this Agreement, Buyer has the right to rely conclusively on the instructions and decisions of Sellers’ Representative as to the settlement of any claims for indemnification by Buyer pursuant to ARTICLE XI, or any other Seller Ancillary Agreement actions required or permitted to be given to either Seller. A successor to taken by Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretohereunder, and (ii) shall survive no Seller will have any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason cause of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller action against Buyer for any action taken by Buyer in reliance upon the instructions or omitted decisions of Sellers’ Representative. Any action taken by Sellers’ Representative hereunder pursuant to the authority granted in this Section 12.14 is effective and absolutely binding on each Seller notwithstanding any contrary action of or under direction from such Seller. The liquidation, death or incapacity of any other document hereunder, or in connection therewith, except that Seller does not terminate the authority and agency of Sellers’ Representative shall not be relieved (or successor thereto). The provisions of this Section 12.14 are binding upon the heirs, executors, personal representatives, beneficiaries, successors and assigns of each Seller, and any Liability imposed references in this Agreement to a Seller means and includes the successors to such Seller’s rights hereunder, whether pursuant to any testamentary disposition, the laws of descent and distribution or otherwise. The Sellers’ Representative irrevocably agrees in favor of the other Sellers to instruct the issuer of the applicable Bank LCs promptly to wire any and all funds from the Bank LCs constituting the First Deferred Payment or the Second Deferred Payment directly to the Transaction Account (or, if applicable, any successor to the Transaction Account held by Law the entity then serving as the Disbursing Agent) for actual fraud, gross negligence or willfulsubsequent distribution to the Sellers.
Appears in 1 contract
Sellers’ Representative. The Selling Parties hereby appoint ▇▇. ▇▇▇▇▇ (a) Each Seller irrevocably constitutes and appoints VPM as the “Sellers’ Representative” to act ”) as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in such Seller’s name, place and stead, in any and all capacitiesauthorizing it to act on their behalf to supervise the Closing, to do execute and perform every act deliver any instruments of transfer or other documents required of Selling Parties and thing receive documents required of Buyer at the 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 to be done with respect to all matters arising under by this Agreement, the Escrow Agreement and any to administer all other Seller Ancillary matters related to this Agreement, as contemplated by this Agreement. All The Selling Parties hereby confirm all actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. that Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of its appointment as Sellers’ Representative of the foregoing, Selling Parties. Sellers’ Representative shall have full power act for the Selling Parties on all of the matters set forth in this Agreement in the manner Sellers’ Representative believes to be in the best interest of the Selling Parties and authority to interpret all consistent with the terms and provisions of obligations under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. but Sellers’ Representative shall not be liable responsible to either Seller the Selling Parties for any action taken Losses the Selling Parties may suffer by the performance of its duties under this Agreement, other than Losses arising from the willful misconduct or omitted gross negligence in the performance of its duties under this Agreement. The Selling Parties agree jointly and severally to indemnify, defend and hold harmless Sellers’ Representative and its officers, directors, members, employees and representatives from and against any and all Losses that may be incurred by any of them arising out of or in connection with its appointment as Sellers’ Representative under this Agreement (except such as may result from Sellers’ Representative willful misconduct or gross negligence in the performance of its duties under this Agreement), including the 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 Sellers’ Representative hereunder or under any other document hereunder, or in connection therewithwith this Agreement. Sellers’ Representative, except each Selling Party and Buyer expressly acknowledge that Sellers’ Representative shall not be relieved have no authority or responsibility to act on behalf of any Liability imposed Selling Party in connection with any claim, action or proceeding initiated against such Selling Party pursuant to a breach by Law for actual fraudsuch Selling Party of such Selling Party’s individual representations, gross negligence warranties or willfulcovenants hereunder.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Titanium Asset Management Corp)
Sellers’ Representative. (ai) Each The holders of the Company Capital Stock, the Senior Secured Lender and the Second Lien Lender (the “Seller Parties”) have irrevocably constitutes and appoints VPM as “appointed the Sellers’ Representative” to act Representative as such Seller’s true the agent, proxy and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller Party for all purposes of this Agreement, 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 this Agreement, (c) to execute and deliver any instruments as may be necessary in connection with the consummation of the transactions contemplated hereby, (e) to execute and deliver on behalf of such Seller’s nameSeller Party any amendment or waiver relating to this Agreement or any Ancillary Agreement, place (f) to take all other actions to be taken by or on behalf of the Seller Parties in connection herewith, (g) to negotiate, settle, compromise and stead, in otherwise handle all claims made by any indemnified party pursuant to Section 7A hereof and (h) to do each and every act and exercise any and all capacitiesrights which a Seller Party is, or such Seller Parties collectively are, permitted or required to do or exercise under this Agreement or any Ancillary Agreement.
(ii) Buyer will be entitled to: (i) rely on 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 including to receive and make payments, to do receive and perform every act send notices, to receive and thing required deliver documents, to exercise, enforce or permitted waive rights or conditions, to be done give releases and discharges and to defend against indemnification claims of Buyer Parties; and (ii) deal only with the Sellers’ Representative in respect to of all matters arising under this Agreement, including to receive and make payments, to receive and send notices (including notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, and to give releases and discharges. In no event shall Buyer be held responsible or liable for the Escrow Agreement and application or allocation of any other Seller Ancillary Agreement. All actions taken by monies paid to the Sellers’ Representative hereunderby Buyer, under the Escrow Agreement or under any other Seller Ancillary Agreement and Buyer shall be binding entitled to rely upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing any notice provided to them by each of them. the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, action taken by the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill acting within the interests and purposes scope of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeits authority.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Merger Agreement (Chase Corp)
Sellers’ Representative. (a) Each Seller By virtue of the execution of this Agreement and the Optionee Joinder Agreement and without any further action of the Company or any of the Equityholders, each Equityholder hereby irrevocably agrees, constitutes and appoints VPM Fortis Advisors LLC, a Delaware limited liability company as “the Sellers’ Representative under this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement, and by the execution of this Agreement as Sellers’ Representative” to act , the Sellers’ Representative ▇▇▇▇▇▇ accepts its appointment, as such Seller’s true the exclusive and lawful agent and attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, of each of the Equityholders following the Closing (i) to do and perform every act and thing required or permitted to be done with respect to all matters arising as a representative of the Equityholders under this Agreement, the Escrow Paying Agent Agreement and any other Seller Ancillary Agreement. All actions taken by the Sellers’ Representative hereunderEngagement Agreement and to have the right, under power and authority to perform all actions (or refrain from taking any actions) the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary shall, in its sole discretion, deem necessary, appropriate or appropriate under advisable in connection with, or related to, this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Paying Agent Agreement and distributing such funds in accordance with this the Sellers’ Representative Engagement Agreement or and the Escrow AgreementTransactions, as applicable;
(ii) participating to act in the adjustmentname, objection, resolution place and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf stead of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done Equityholder in connection with the matters described aboveTransactions, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all 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 Escrow Sellers’ Representative shall, in its sole discretion, deem necessary, appropriate or advisable in connection with, or related to, this Agreement and any other Seller Ancillary Agreement and the Transactions. Notwithstanding the foregoing or Section 12.12(b), the Sellers’ Representative shall have no obligation to consent to any amendment or waiver hereof or thereof act on behalf of all Sellers the Equityholders, except as expressly provided herein, in the Paying Agent Agreement and their successors. Buyers and in the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any notice contemplated by 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 the Sellers’ Representative Engagement Agreement, nor will Sellers’ Representative be entitled to any fee, commission or other compensation from Purchaser, the Company or any of their Affiliates for the performance of its services hereunder.
(b) Without derogating from the generality of the foregoing, as of 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 Escrow 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 Seller Ancillary Agreement communications or documents given or to be given to either Seller. A successor 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 payments or pay any expenses under or in connection with this Agreement, the Paying Agent Agreement and the Sellers’ Representative Engagement Agreement or on behalf of the Equityholders; (x) engage counsel, accountants and other advisors and incur such other expenses in connection with any 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 be chosen by a majority deem necessary, appropriate or advisable to carry out the intents and purposes of this Agreement, in interest each case without having to seek or obtain the consent of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerany Equityholders under any circumstance.
(c) The grant of authority to Sellers’ Representative provided for in this Section 13.7 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 Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller any Equityholder and shall be binding on any successor thereto, and (ii) shall survive the consummation of the Transactions and (iii) shall survive the delivery of an assignment by any distribution from Equityholder of the Escrow Agent.whole or any fraction of his, her or its interest in the Adjustment Holdback Amount. All actions, decisions and instructions of the Sellers’ Representative 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 the Sellers’ Representative of any 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 the Sellers’ Representative Engagement Agreement shall constitute a decision of each Equityholder and shall be 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 action of the Sellers’ Representative taken in good faith under this Agreement, the 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 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 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 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 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 reason the Sellers’ Representative that the Expense Fund is no longer required to be withheld, the 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 a fiduciary relationship and the Sellers’ Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 respect connection with the acceptance or administration of either Sellerthe 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 liable to either Seller the Equityholders for any action taken or omitted by omission pursuant to the advice of counsel. The Equityholders shall indemnify, defend and hold harmless the Sellers’ Representative hereunder or under Group against any and all reasonable and documented losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other document hereunderskilled professionals and in connection with seeking recovery from insurers), judgments, fines, amounts paid in settlement (collectively, “Representative Losses”) arising out of or in connection therewithwith this Agreement, except the Paying Agent Agreement or the Sellers’ Representative Engagement Agreement, 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 primarily caused by the gross negligence or willful misconduct of the Sellers’ Representative, the Sellers’ Representative will 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 relieved required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any Liability imposed 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 Law for actual fraudthe Sellers’ Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, gross negligence any restrictions or willfullimitations 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 time and may be removed or replaced by the vote of the Advisory Group. The foregoing immunities and indemnities will survive the Closing, the resignation or removal of the Sellers’ Representative or any member of the Advisory Group or the termination of this 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 part of Purchaser.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably S▇▇▇▇▇▇ Ready Mix is hereby constituted and appointed as the Sellers Representative. On behalf of himself /itself and his/its successors and assigns, each Selling Party appoints and constitutes the Sellers Representative as his or its agent and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact with the powers and agent and authorizes Sellers’ Representative, acting for such Seller and authority as set forth in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, . The Sellers Representative shall be the exclusive agent for and on behalf of the Selling Parties to (i) enter into the Escrow Agreement Agreement; (ii) give and receive notices and communications to or from S▇▇▇▇▇▇ Ready Mix, SRM Leasing and S▇▇▇▇▇▇ Sand (on behalf of itself or any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under Indemnified Party) and/or the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under Agent relating to this Agreement, the Escrow Agreement or any of the other Seller Ancillary Transaction Documents; (iii) authorize deliveries to Purchaser of cash or other property from the Adjustment Escrow Account and the Indemnification Escrow Account (including obligations to deliver such cash that arise in accordance with Article IX and the Escrow Agreement from the failure of the Sellers Representative to take an action) and legally bind each Selling Party to pay cash directly to Purchaser in satisfaction of claims pursuant to the terms of Article IX; (iv) resolve Third Party Claims in accordance with Section 9.3; (v) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such Third Party Claims; (vi) make all determinations and resolve all matters under Section 3.4, (vii) receive funds and payments under this Agreement or the Transaction Documents on behalf of any Selling Party; (viii) take all actions necessary or appropriate in the judgment of the Sellers Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance and (ix) in accordance with Section 11.3, execute for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or each Selling Party any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant amendment to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Selling Party or by operation of Law, whether by the death or incapacity of any Owner, the dissolution of any Seller, or the occurrence of any other Seller Ancillary Agreement;event, and any action taken by Sellers Representative will be as valid as if such death, incapacity, dissolution or other event had not occurred, regardless of whether or not any Selling Party or Sellers Representative will have received any notice thereof.
(viiib) delivering all notices required to Sellers Representative shall be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take the sole and exclusive means of asserting or addressing any of the actions set forth in paragraphs (i) through (ix) in Section 9.9(a), and no Selling Party shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against Sellers Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of this time, agreement, consent, settlement, resolution or instruction of, Sellers Representative that is within the scope of Sellers Representative’s authority pursuant to Section 13.7(a9.9(a) without (a “Representative’s Decision”) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Selling Parties and shall be final, binding and conclusive upon each of them. For so long as S▇▇▇▇▇▇ Ready Mix remains Sellers Representative, each of Purchaser and Escrow Agent shall be entitled to rely upon any Representative’s Decision received from P▇▇▇▇▇ ▇▇▇▇▇▇▇, E▇▇▇▇▇ ▇▇▇▇▇▇▇, or R▇▇▇▇▇ ▇▇▇▇▇▇▇ as being a Representative’s Decision of Sellers Representative. Each of Purchaser and the prior written consent Escrow Agent shall be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform time, agreement, consent, settlement, resolution or instruction of, each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereofSelling Party. Without limiting the generality Each of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers Purchaser and the Escrow Agent are entitled unconditionally and authorized irrevocably relieved from any liability to give notices only to Sellers’ Representative any Person for any notice contemplated acts done by this Agreement, the Escrow Agreement or them in compliance with any other Seller Ancillary Agreement to be given to either SellerRepresentative’s Decision. A successor notice by Purchaser to Sellers’ the Sellers Representative may be chosen by shall constitute a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerof the Selling Parties.
(c) The grant agency of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall Sellers Representative may be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretochanged, and (ii) shall survive the Person serving as Sellers Representative may be replaced from time to time, by the vote or consent of the Owners of each Asset Seller representing a majority of the Owner Pro Rata Share upon not less than ten days’ prior written notice to Purchaser. A vacancy in the position of Sellers Representative may be filled by the vote or consent of the Owners of each Asset Seller representing a majority of the Owner Pro Rata Share. If Sellers Representative refuses or is no longer capable of serving as Sellers Representative hereunder, then the Owners of each Asset Seller representing a majority of the Owner Pro Rata Share will promptly appoint a successor Sellers Representative who will thereafter be a successor Sellers Representative hereunder, and Sellers Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of Sellers Representative, or refusal or incapability of Sellers Representative to serve, which continues for more than 30 days, Purchaser may appoint a successor Sellers Representative who will thereafter be a successor Sellers Representative hereunder. If there is not a Sellers Representative at any distribution from time, any obligation to provide notice to Sellers Representative will be deemed satisfied if such notice is delivered to each of the Escrow AgentOwners at their addresses last known to Purchaser.
(d) Sellers’ All expenses, if any, incurred by Sellers Representative in connection with the performance of his duties as Sellers Representative (the “Representative Expenses”) will be borne by the Owners. Sellers Representative may recover Representative Expenses directly from the Owners. No bond will be required of Sellers Representative, and Sellers Representative will not receive any compensation for its services. The limitation of liability provisions of Section 9.9(e) shall survive the resignation of the Sellers Representative.
(e) Sellers Representative shall not have not, by reason of this Agreement Agreement, have a fiduciary relationship in respect of either Sellerany Selling Party. Sellers’ Sellers Representative shall not be liable to either Seller any Selling Party for any action taken or omitted by Sellers’ the Sellers Representative hereunder or under in connection herewith, other than any other document hereunderliability imposed by Law for gross negligence or willful misconduct. Sellers Representative may rely, and shall be fully protected in acting, upon any statement, certificate, instrument, opinion, report, notice, request, consent, order, or other paper believed by Sellers Representative to be genuine and to have been signed or presented by the proper party or parties or, in connection therewiththe case of telecopies and electronic mail, except to have been sent by the proper party or parties. Each Selling Party acknowledges and agrees that Sellers’ Sellers Representative shall not be relieved obligated to take any actions and shall be entitled to take such actions as the Sellers Representative deems appropriate in its sole discretion. Sellers Representative shall not be liable to any Selling Party for any act done or omitted hereunder as Sellers Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The Selling Parties shall severally and not jointly indemnify Sellers Representative and hold Sellers Representative harmless against any Liability imposed by Law for actual fraud, Losses incurred without gross negligence or willfulwillful misconduct on the part of Sellers Representative and arising out of or in connection with the acceptance or administration of Sellers Representative’s duties hereunder. Each Selling Party acknowledges and agrees that such rights to indemnity and to be held harmless shall apply without regard to the negligence of Sellers Representative.
(f) Sellers Representative shall have reasonable access to information about Purchaser for purposes of performing Sellers Representative’s duties and exercising Sellers Representative’s rights hereunder, except that no Purchaser Indemnified Party shall be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Sellers Representative shall treat confidentially and not use or disclose the terms of this Agreement, the Transaction Documents or any nonpublic information from or about Purchaser or any Purchaser Indemnified Party to anyone, except that Sellers Representative may disclose the terms or information to the Selling Parties or Sellers Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If reasonably requested by P▇▇▇▇▇▇▇▇, Sellers Representative shall enter into a separate customary confidentiality agreement before being provided access to such information.
(g) The initial Sellers Representative h▇▇▇▇▇ accepts the appointment contained in this Agreement, and agrees to act as S▇▇▇▇▇▇ Representative and to discharge the duties and responsibilities of Sellers Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Equity and Asset Purchase and Contribution Agreement (Concrete Partners Holding, LLC)
Sellers’ Representative. (a1) Each Seller irrevocably constitutes and of the Sellers hereby appoints VPM as “Sellers’ Representative” Representative as agent for and on behalf of Sellers and irrevocably authorizes Sellers’ Representative to act as each such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Transaction Document to which a Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of themis a party. Sellers’ Representative shall take any hereby accepts such appointment and all actions which it believes are necessary or appropriate under this Agreement, agrees to perform the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions responsibilities set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeherein.
(b2) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the to generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret make all decisions and take all actions relating to the terms Sellers’ respective rights, obligations (other than with respect to the obligations to make payments, which responsibility shall be borne by the applicable Seller(s)) and provisions of remedies under this Agreement, the Escrow Agreement and any Transaction Document to which a Seller is a party, including to receive payments (for the further benefit of the Sellers (other Seller Ancillary than CDPQ and Fondaction) as set forth in this Agreement or the Escrow Agreement), to give and receive notices and Communications, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, 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 any and all claims under this Agreement or disputes under Section 2.7, Section 2.8, Section 2.9 or Article 12 of this Agreement (to the extent related to any breach by the Corporation of the representation warranties and covenants set forth herein), and to consent to any amendment take all actions necessary or waiver hereof or thereof on behalf appropriate in the judgment of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated the accomplishment of the foregoing. All decisions and actions taken by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative shall be final binding and conclusive upon all Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Buyer may be chosen by a majority in interest rely upon any such decision, act, consent, or instruction of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and as being the Escrow Agent and to decision, act, consent or instruction of each Seller.
(c3) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and No bond shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation required of either Seller and shall be binding on any successor theretoSellers’ Representative, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of receive no compensation for its services.
(4) All references in this Agreement to decisions and actions to be taken by the Sellers or any one of them, as the case may be, shall be deemed taken by a fiduciary relationship in respect Seller or any one of either Seller. them, as the case may be, if such decisions or actions are taken by Sellers’ Representative Representative. All references in this Agreement to decisions and actions to be taken by Buyer and directed to the Sellers or any one of them, as the case may be, shall not be liable deemed directed to either Seller for the Sellers or any action taken one of them, as the case may be, if such decisions or omitted actions are directed by Buyer to Sellers’ Representative.
(5) In exercising or failing to exercise all or any of the powers conferred upon Sellers’ Representative hereunder or under any other document hereunderthereunder, or in connection therewith, except that 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 thereunder or any other agreement, instrument or document, excepting the only responsibility for any act or failure to act which represents gross fault.
(6) The execution by the Sellers of the Agreement shall be deemed to be approval of the terms of the provisions of this Section 14.14, including the appointment of Sellers’ Representative.
(7) 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.
(8) Sellers hereby agree, on the basis of their Pro Rata Share, to indemnify and hold harmless Sellers’ Representative, its directors, officers and employees from and against the full amount of any loss, liability, damage, cost, expense, charge, fine, penalty and reasonable professional fees and disbursements which Sellers’ Representative, its directors, officers or employees may suffer as a result of acting as Sellers’ Representative or on behalf of Sellers’ Representative.
(9) Notwithstanding the foregoing, Sellers’ Representative shall (i) inform all Sellers of any Claim received by Sellers’ Representative from Buyer pursuant to Article 10 and (ii) not be relieved entitled to settle any Claim relating to a breach of any Liability imposed by Law for actual fraud, gross negligence the representations or willfulwarranties set out in Article 4.
Appears in 1 contract
Sources: Share Purchase Agreement (Internap Network Services Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes The Sellers hereby constitute and appoints VPM appoint the Sellers Representative as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and attorney in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement fact for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ the Sellers Representative shall have has full power and authority authority, on behalf of each Seller and his, her or its successors and assigns, to (i) interpret all the terms and provisions of this AgreementAgreement and the documents to be executed and delivered by or on behalf of the Sellers in connection herewith, including the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all the agreement entered into by the Sellers and their successors. Buyers and Representative with the Escrow Agent are entitled with respect to the administration of the Holdback Amount (the “Holdback Agreement”), (ii) execute and authorized deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to give notices only to Sellers’ Representative for any notice 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 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 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 other Seller Ancillary Agreement portion thereof in satisfaction of claims brought by the Buyer for Losses, (vii) object to be given to either Seller. A successor to Sellers’ Representative 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 chosen 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 10.1.
(b) Such agency may be changed by the holders of a majority in interest of Sellersthe Indemnity Escrow Amount (the “Majority-in-Interest”) from time to time upon not less than five days’ prior written notice to the Buyer. The Sellers Representative, provided that or any successor hereafter appointed, may resign at any time by written notice thereof is given promptly to the Buyer. A successor Sellers Representative will be named by a Majority-in-Interest. All power, authority, rights and privileges conferred in this Agreement to the Sellers Representative will apply to any successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerSellers Representative.
(c) The grant Sellers Representative will not be liable for any act done or omitted under this Agreement, the Escrow Agreement or the Holdback Agreement as Sellers Representative while acting in good faith, and any act taken or omitted to be taken pursuant to the advice of authority provided 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 (pre-Closing) or the Sellers. In performing any of its duties under this Agreement or any agreements or documents executed and delivered in connection herewith, the Sellers Representative will not be liable to the Sellers for any Losses that such Person may incur as a result of any act, or failure to act, by the Sellers Representative under this Agreement or any agreements or documents executed and delivered in 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 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 13.7 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 by 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) is coupled with an interest the Optionholders’ Seller Pro Rata Share of the Remaining Holdback Amount, if any, to the Company and is being grantedthe Buyer shall cause the Company to (A) pay or cause the Subsidiary to pay such amount to the Optionholders, in partless any applicable Taxes required to be withheld, as an inducement promptly as practicable thereafter, and (B) pay such withheld Taxes to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretoproper Taxing Authority, and (ii) shall survive any distribution from to each Stockholder its respective pro rata share (based on the Escrow AgentSeller 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.
(df) Sellers’ 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 not 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 by reason of this Agreement a fiduciary relationship in respect of either Sellerthe right to object, dissent, protest or otherwise contest the same. Sellers’ Representative shall not be liable The Buyer is hereby relieved from any liability to either Seller any Person for any action taken acts done by the Sellers Representative and any acts done by the Buyer in accordance with any decision, act, consent or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved instruction of any Liability imposed by Law for actual fraud, gross negligence or willfulthe Sellers Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Watts Water Technologies Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as hereby designates ORIX Funds Corp. (the “Sellers’ Representative” to act ”) as such Seller’s true and lawful its representative, attorney-in-fact and agent with full power and authorizes authority:
(i) to execute and deliver any documents or certificates required to be delivered pursuant to this Agreement, 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 documents or certificates as the Sellers’ Representative, acting for such Seller and in such Seller’s nameits sole discretion, place and stead, in any and all capacities, to do and perform every act and thing required or permitted determines to be done desirable;
(ii) to execute and deliver such waivers and consents in connection with respect to all matters arising under this Agreement, the Escrow Agreement and any other the Seller Ancillary Agreement. All actions taken by Expenses Escrow Agreement and the consummation of the transactions contemplated hereby and thereby as the Sellers’ Representative hereunderRepresentative, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirsin its sole discretion, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are may deem necessary or appropriate under desirable, including any amendments or modifications to this Agreement, the Escrow Agreement or the Seller Expenses Escrow Agreement;
(iii) 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 Sellers pursuant to this Agreement, including the funds in the Indemnity Escrow Account, the Adjustment Escrow Account and the Seller Expenses Escrow Account and any other Seller Ancillary Agreement for and on behalf portion of or earnings accrued thereon which may be distributable to the Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to accordance with the Escrow Agreement and distributing such funds in accordance with this Agreement or the Seller Expenses Escrow Agreement, as applicable;
(ii) participating in the adjustment, objectionand, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect subject to any suitapplicable withholding retention laws, action or proceeding arising out of or related to this Agreement;
(v) executing disburse and performing pay the Escrow Agreement or any other same, to the extent payable to Sellers, to each Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes terms of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewithExpenses Escrow Agreement, as applicable;
(viiiv) taking as the Sellers’ Representative, to enforce and protect the rights and interests of the 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 action actions which the Sellers’ Representative believes are necessary or appropriate under this Agreement and the 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 from time in any such Action and compromise or settle on such terms as the Sellers’ Representative shall determine to time 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 desirable 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 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 foregoing; provided, however, that no such failure to act on the part of the Sellers’ 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 by the Sellers’ Representative or by such Sellers unless such waiver is in writing signed by the waiving party or by the Sellers’ Representative;
(vi) to give and receive any notice to be given by or to the Sellers pursuant to this Agreement, the Escrow Agreement and the Seller Expenses Escrow Agreement (including, 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 make any payments or enter into pay any waiverexpenses under or in connection with this Agreement, amendmentthe Escrow Agreement or the Seller Expenses Escrow Agreement or on behalf of the Sellers, agreementincluding pursuant to ARTICLE X.
(b) The Acquiror shall be entitled to rely on any and all actions taken by the Sellers’ Representative without any liability to, opinionor obligation to inquire of, certificate or seek the consent of any Seller. The Sellers’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder.
(c) In connection with this Agreement and any instrument, agreement or document contemplated relating hereto, 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 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 or any other and the Seller Ancillary Expenses Escrow Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the The Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority Representative shall be entitled to do and perform each and every act and thing necessary or desirable to be done recover the amount of any expenses incurred by it in connection with the matters described above, as fully to all intents and purposes as such acceptance or administration of its duties hereunder from the Seller might or could do Expenses Escrow Account (but not solely from the Seller Expenses Escrow Account) in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled accordance with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Expenses Escrow AgentAgreement.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Sellers hereby irrevocably constitutes make, constitute and appoints VPM appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the initial “Sellers Representative”) as “Sellers’ Representative” to act as such Seller’s their true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in with full power of substitution to do any and all capacitiesthings and execute any and all documents which may be necessary, convenient or appropriate to do facilitate the consummation of the transactions contemplated by this Agreement and perform every act the other Transaction Documents, including: (i) receipt of payments hereunder and thing required the disbursement thereof to Sellers and others; (ii) receipt and forwarding of notices and communications pursuant to this Agreement and the other Transaction Documents; (iii) administration of this Agreement and the other Transaction Documents, including the resolution of any dispute or permitted claim; (iv) making any determinations to settle any dispute as to the calculation of the Purchase Price; (v) resolution, settlement or compromise of any claim for indemnification asserted against a Seller pursuant to Article 5; (v) agreeing to waivers of conditions and obligations under this Agreement and the other Transaction Documents; (vi) asserting, on behalf of Sellers, claims for indemnification under Article 5 and resolving, settling or compromising all such claims, and (vii) executing, and performing the obligations under, the Escrow Agreement.
(b) In the event that Sellers Representative, with the advice of counsel, is of the opinion that he or she requires further authorization or advice from Sellers on any matters concerning this Agreement, Sellers Representative is entitled to seek such further authorization from Sellers prior to acting on their behalf. In such event and on any other matter requiring or permitting Sellers to vote in this Section 4.4, each Seller will have a number of votes equal to the Shares owned by that Seller immediately prior to Closing and the authorization of a majority of such Shares will be done binding on all Sellers and will constitute authorization by Sellers.
(c) Buyer will be fully protected in dealing with Sellers Representative with respect to this Agreement, the other Transaction Documents and the transactions contemplated by this Agreement and may rely upon the authority of Sellers Representative to act as the agent of Sellers for all matters arising purposes under this Agreement, the Escrow Agreement other Transaction Documents and any other Seller Ancillary Agreementthe transactions contemplated hereby and thereby. All actions taken Any payment by Sellers’ Buyer to Sellers Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Transaction Document will be considered a payment by Buyer to Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf . The appointment of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall will be irrevocable and survive by any Seller in any manner or for any reason. This power of attorney will not be affected by the death, incompetency, bankruptcy disability or liquidation incapacity of either Seller and shall be binding on the principal pursuant to any successor thereto, and (ii) shall survive any distribution from the Escrow Agentapplicable Legal Requirement.
(d) Sellers’ If at any time there is more than one Sellers Representative, any act of Sellers Representative shall not have will require the act of a majority of Sellers Representatives. Any Sellers Representative may resign from his or her capacity as a Sellers Representative at any time by reason written notice delivered to the other Sellers and to Buyer. If there is a vacancy at any time in the position of Sellers Representative for any reason, the remaining Sellers Representative may act with full power and authority until such time as the remaining Sellers Representative will select a successor to fill such vacancy. If at any time there is no person acting as a Sellers Representative for any reason, Sellers will promptly designate a new Sellers Representative and promptly notify Buyer in writing of such determination. Following the time that Buyer is notified that there is no Sellers Representative and until such time as a new Sellers Representative is designated as provided herein and Buyer is so notified in writing, Sellers will collectively act as Sellers Representative, with decisions made in the manner specified in Section 4.4(b).
(e) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the initial sole Sellers Representative, acknowledges that he has carefully read and understands this Agreement, hereby accepts such appointment and designation, and represents that he will act in his capacity as a Sellers Representative in strict compliance with and conformance to the provisions of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ and the other Transaction Documents.
(f) Sellers Representative shall will not be liable to either Seller Sellers for any action error of judgment, or any act done or step taken or omitted by Sellers’ Representative hereunder him in good faith or under for any other document hereundermistake in fact or Legal Requirement, or for anything that he or she may do or refrain from doing in connection therewithwith this Agreement or the other Transaction Documents, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence his or her own bad faith or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Noble International, Ltd.)
Sellers’ Representative. (a) Each By approving this Agreement and the transactions contemplated hereby, each Seller Party hereby irrevocably constitutes authorizes and appoints VPM as “Sellers’ Representative” to act Representative as such SellerSeller Party’s true representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for to act on behalf of such Seller Party with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done taken by Sellers’ Representative pursuant to this Agreement or the Ancillary Documents, including, but not limited to, the exercise of the power 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 matters arising documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or 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, the Escrow Agreement and on any other action taken or purported to be taken on behalf of any Seller Ancillary AgreementParty by Sellers’ Representative, as being fully binding upon such Seller Party. All actions taken 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, under the Escrow Agreement or under including any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall take 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 and all actions which it believes are necessary act of any one Seller Party or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf by operation of Sellers, as fully as if Sellers were acting on their own behalf, including:Law.
(ic) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary resign at any time, and may be removed for any reason or desirable to fulfill no reason by the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary vote or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellersthe Seller Parties; provided, provided that notice thereof is given promptly by the successor however, in no event shall Sellers’ Representative to Buyers and resign or be removed without the Escrow Agent and to each Seller.
(c) The grant Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive Sellers’ Representative. In the event of the death, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and Sellers’ Representative, a new Sellers’ Representative shall be binding 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 any successor thereto, the decisions and (ii) shall survive any distribution from actions of the Escrow Agentprior Sellers’ Representative.
(d) Sellers’ Representative shall not have by reason of be liable to the Seller Parties for actions taken pursuant to this Agreement or any Ancillary Document, except to the extent such actions shall have been determined by a fiduciary relationship in respect court of either Seller. 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’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and not be liable to either Seller for any action taken or omitted by jointly, indemnify and hold harmless Sellers’ Representative hereunder or under from and against, compensate it for, reimburse it for and pay any other document hereunderand all losses, or liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection therewithwith its activities as Sellers’ Representative under this Agreement, except in each case as such losses are suffered or incurred; provided, that in the event it is finally adjudicated that any such loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, Sellers’ Representative shall not be relieved reimburse Seller Parties the amount of any Liability imposed by Law for actual such indemnified losses attributable to such gross negligence, fraud, gross negligence intentional misconduct or willfulbad faith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Sellers’ Representative. (a) Each Seller hereby irrevocably makes, constitutes and appoints VPM ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s his, her or its exclusive agent and true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in with full power of substitution to do any and all capacitiesthings and execute any and all documents which may be necessary, convenient or appropriate to do and perform every act and thing required or permitted to be done with respect to all matters arising under facilitate the consummation of the transactions contemplated by this Agreement, including but not limited to: (i) make all decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any amounts payable or distributable to the Sellers hereunder; (iii) execution and delivery, on behalf of Sellers, of the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken document required by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
; (iv) initiating or taking any action with respect to any suit, action or proceeding arising out receipt of or related to this Agreement;
(v) executing payments hereunder and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, under the Escrow Agreement and the other Seller Ancillary Agreements disbursement thereof to the Sellers and engaging agents others; (v) receipt and representatives forwarding of notices and communications pursuant to this Agreement and the Escrow Agreement; (vi) administration of this Agreement and the Escrow Agreement, including accountants and legal counsel) to assist in connection herewith and therewith;
the resolution of any dispute or claim; (vii) taking the resolution, settlement, or compromise of any and all action claim for indemnification asserted against Sellers pursuant to Section 5.1(a); (viii) asserting, on behalf of Sellers from time the Sellers, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to time any amendment to this Agreement, or waiver of any of its terms and conditions; and (x) take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Seller or other Person under any circumstance.
(b) Buyer and the Escrow Agent 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 as agent of the Sellers. Any payment by Buyer to the Sellers’ Representative under this Agreement shall be considered a payment by Buyer to the Sellers. The appointment of the Sellers’ Representative is coupled with an interest and shall be irrevocable by any Seller in any manner and for any reason. This power of attorney shall not be affected by the disability or incapacity of the principal pursuant to any applicable law.
(c) The Sellers’ Representative acknowledges that the Sellers’ Representative has carefully read and understands this Agreement, hereby accepts such appointment and designation, and represents that he will act in his capacity as Sellers’ Representative may deem necessary or desirable in strict compliance with and conformance to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under the provisions of this Agreement.
(d) The Sellers agree that in the event ▇▇. ▇▇▇▇▇▇▇ or his successor refuses to serve, or is no longer capable of serving, as the Sellers’ Representative, the Escrow Agreement Sellers shall appoint another person to serve as the Sellers’ Representative by a vote of the Sellers who held a majority of the outstanding shares of the Company prior to the Closing. Each of the Sellers agrees that ▇▇. ▇▇▇▇▇▇▇ or any other Seller Ancillary Agreement;his successor may be removed from serving as the Sellers’ Representative by a vote of the Sellers who held a majority of the outstanding shares of the Company prior to the Closing.
(viiie) delivering all notices required Under no circumstances shall the Sellers’ Representative have any liability, under any fiduciary theory or otherwise, to be delivered by either Seller; and
(ix) receiving all notices required the Sellers for any act or omission to be delivered to either Seller. No Seller may take any act of the actions set forth Sellers’ Representative in paragraphs (i) through (ix) such capacity, unless the Seller asserting such liability is able to prove that the Sellers’ Representative was guilty of this Section 13.7(a) gross negligence or willful malfeasance. Each Seller shall, severally but not jointly and on a pro rata basis, indemnify, save and hold harmless the Sellers’ Representative from and against any and all costs, losses, liabilities, obligations, Damages, law suits, deficiencies, claims, demands and expenses, including, without limitation, attorneys’ fees incurred in connection with, arising out of, resulting from, or incident to any act or omission to act of the prior written consent Sellers’ Representatives in his capacity as such, except to the extent caused by the willful misconduct, gross negligence or bad faith of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Share Purchase Agreement (Mine Safety Appliances Co)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes ----------------------- and appoints VPM as “Sellers’ the Seller's Representative” to act , with full power of substitution, as such Seller’s true and lawful Person's attorney-in-fact with full irrevocable power and agent authority in the place and authorizes Sellers’ Representative, acting for stead of such Seller Person and in the name of such Person or in the Seller’s 's Representative's own name, place and steadfrom time to time in the Seller's Representative's reasonable discretion, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under for the purpose of carrying out the terms of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall to take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for action and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers to execute and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of deliver any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing documents and performing instruments which the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Seller's Representative may reasonably deem necessary or desirable to fulfill accomplish the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ each such Person hereby gives the Seller's Representative shall have full the power and authority to interpret all the terms and provisions of this Agreementright, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers each such Person, to do the following:
(i) agree with the Buyer as to the allocation of the Purchase Price and their successors. Buyers and Assumed Liabilities;
(ii) agree with the Escrow Agent are entitled and authorized Buyer as to give notices only to Sellers’ Representative for any notice contemplated by this Agreementthe Closing Date;
(iii) amend, change or modify the Escrow Agreement or any Transaction Document (to the extent such Person is a party thereto) before or after Closing;
(iv) receive any notice to any such Person relating to this Agreement or any Transaction Document;
(v) settle or otherwise deal with Buyer on any matter arising in connection with this Agreement or any Transaction Document.
(a) Notwithstanding anything contained herein to the contrary, at Buyer's option, Buyer may (i) pay the Closing Date Cash Payment to the Seller's Representative, (ii) make the Buyer's Notes payable to the Seller's Representative and (iii) pay any other amount due by Buyer to Seller Ancillary under this Agreement to be given to either the Seller. A successor to Sellers’ 's Representative may be chosen by a majority in interest of Sellers(including, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers without limitation, Gross Crop Revenues and the Escrow Agent Earn-Out Payment). The Seller's Representative shall be responsible for allocating and transferring any amounts so received from Buyer among the individual Sellers. Buyer's payment to each the Seller's Representative of any such amount shall fully discharge Buyer's obligation to make any such payment to any Seller.
(cb) The grant Each Seller hereby ratifies, to the extent permitted by applicable law, all that Seller's Representative lawfully does or causes to be done by virtue of authority provided for in this Section 13.7 (i) is 5.7. The power of attorney granted pursuant to this Section 5.7, being coupled with an interest and interest, is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentirrevocable.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM hereby designates ▇.▇. ▇▇▇▇▇▇ (or such Person subsequently designated by ▇.▇. ▇▇▇▇▇▇ in writing) as the “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in execute any and all capacitiesinstruments or other documents on behalf of such Seller, and to do any and perform every act and thing required all other acts or permitted to be done with respect to all matters arising under this Agreementthings on behalf of such Seller, which the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified acting in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are good faith may deem necessary or appropriate under this Agreementadvisable, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures which may be required pursuant to this Agreement or either Seller Ancillary Agreementotherwise, including pursuant to Articles III in connection with the consummation of the transactions contemplated hereby or XI;
(iii) initiating, consenting thereby and the performance of all obligations hereunder or thereunder prior to, compromising at or settling all indemnity claims or obligations or taking any other actions on behalf following the Closing, including, but not limited to, the exercise of any and all Sellers pursuant to Article XI;
the power to: (ivi) initiating or taking any action act for each Seller with respect to any suitadjustment to the Purchase Price, action (ii) give and receive notices and communications to or proceeding arising out from the Buyer relating to this Agreement or any of the transactions and other matters contemplated hereby, (iii) agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, (A) indemnification or Purchase Price adjustment-related Claims by the Buyer or any other Buyer Indemnitee pursuant to Section 2.3 and/or Article 9, (B) any dispute between any Buyer Indemnitee and any such Seller, in each case relating to this Agreement;
, and (viv) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and take all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill appropriate in the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent judgment of the Sellers’ Representative.
(b) Each Representative for the accomplishment of the foregoing. The Sellers’ Representative shall have authority and power to act on behalf of each Seller grants unto said attorney-in-fact with respect to the disposition, settlement or other handling of all claims under this Agreement and agent full power all rights or obligations arising under this Agreement. The Sellers shall be bound by all actions taken and authority to do and perform each and every act and thing necessary or desirable to be done documents executed by the Sellers’ Representative in connection with this Agreement or otherwise pursuant to this Section 7.6, and the matters described above, as fully Buyer and the other Buyer Indemnitees shall be entitled to all intents rely solely and purposes as such Seller might entirely on any action or could do in person, hereby ratifying and confirming all that decision of the Sellers’ Representative may lawfully do as the action or cause decision of such Seller. The Sellers’ Representative shall receive no compensation for its services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each Seller. Any obligation of Buyer to make or deliver payments to the Sellers under this Agreement shall be done by virtue hereof. Without limiting the generality deemed satisfied, in its entirety, upon delivery of the foregoingsuch payment to Sellers’ Representative and, upon receipt thereof, Sellers’ Representative shall have full power and authority be solely liable for delivery thereof to interpret all the Sellers pursuant to the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (NCI, Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and By voting in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under favor of the adoption of this Agreement, the Escrow Agreement approval of the principal terms of the Merger, and any other 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 Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement and each Incentive Recipient shall be binding upon all Sellers deemed to have appointed Shareholder Representative Services LLC as representative, agent , proxy and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified attorney in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement fact for and on behalf of Sellers, as fully as if the Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives Incentive Recipients (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the “Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof”). Without limiting the generality of the foregoing, the Sellers’ Representative shall have has full power and authority authority, on behalf of each Seller and each Incentive Recipient and his or her successors and assigns, to (i) interpret all the terms and provisions of this Agreement and the documents to be executed and delivered by Sellers and the Incentive Recipients in connection herewith, including the Escrow Agreement, the Escrow Agreement (ii) execute and any other Seller Ancillary Agreement deliver and to consent to any amendment or waiver hereof or thereof on behalf receive deliveries of all Sellers agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and their successors. Buyers other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agent are entitled 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 authorized comply with orders of courts and awards of arbitrators with respect to give notices only such claims, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for any notice contemplated by this Agreementthe accomplishment of the foregoing, (v) give and receive notices and communications, (vi) authorize delivery to Parent of the Escrow Agreement Amount, or any other Seller Ancillary 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 be given the Sellers, (ix) to either Seller. A successor to take all actions which the Sellers’ Representative considers necessary and desirable in connection with the 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 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.
(b) Each Seller and each Incentive Recipient agrees that such agency and proxy are coupled with an interest and are therefore irrevocable without the 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 receive correspondence from the Sellers’ Representative, including in 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 the 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 accordance with its Escrow Account Allocation indemnify and hold harmless the Sellers’ Representative and its members, managers, successors and assigns against all Losses incurred by the Sellers’ Representative in connection with the performance of its duties as the Sellers’ Representative, including Losses resulting from 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 under this Agreement in each case as such Loss is incurred or suffered. If not paid directly to the Sellers’ Representative by the Sellers and Incentive Recipients, any such Losses may be chosen recovered by a majority the Sellers’ Representative from any amounts in interest of Sellers, the Seller Expense Account; provided that notice thereof is given promptly by while this section allows the successor Sellers’ Representative to Buyers and be paid from the Escrow Agent and Seller Expense Account, this does not relieve the Sellers or the Incentive Recipients from their obligation to each Sellerpromptly 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) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Each Seller and shall each Incentive Recipient agrees that the amount of $100,000 (the “Seller Expense Amount”) will be binding on any successor thereto, and (ii) shall survive any distribution retained by the Sellers’ Representative from the Escrow Agent.
Merger Consideration, to pay the costs and expenses incurred by the Sellers’ Representative related to performance of its duties hereunder (d) the “Seller Expense Account”). The Sellers and the Incentive Recipients shall not receive interest or other earnings on the 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 advice. The Sellers’ Representative shall not have by reason no responsibility or liability for any loss of this Agreement principal of the Seller Expense Account other than as a fiduciary relationship in respect result of either Sellerits gross negligence or willful misconduct. Sellers’ Representative shall not 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 liable to either Seller for any action taken or omitted distributed by the Sellers’ Representative hereunder or under any other document hereunderto the Exchange Agent for distribution to the Sellers and the Incentive Recipients in accordance with the Escrow Account Allocation. For tax purposes, or in connection therewith, except the Seller Expense Account shall be treated as having been received and voluntarily set aside by the Sellers and the Incentive Recipients at the time of Closing. The parties agree that the Sellers’ Representative shall is not be relieved of acting as a withholding agent or in any Liability imposed by Law for actual fraud, gross negligence or willfulsimilar capacity in connection with the Seller Expense Account.
Appears in 1 contract
Sources: Merger Agreement (Rimage Corp)
Sellers’ Representative. (a) Each Sellers’ Representative is designated by each Seller irrevocably constitutes Party to serve as the representative of the Seller Parties with respect to the matters expressly set forth in Section 8.2.6(b) and appoints VPM as “with respect to the matters otherwise set forth in this Agreement to be performed by Sellers’ Representative” . Should the initial Sellers’ Representative resign or be unable to act serve, the Stockholders currently holding more than fifty percent (50%) of the Shares as such Sellerof the date hereof on a fully diluted basis will designate a single substitute agent to serve as the successor Sellers’ Representative. The appointment of a successor will be effective on the date of Sellers’ Representative’s true resignation or incapacity or, if later, the date on which the successor is appointed.
(b) Each Seller Party, by the execution of this Agreement, irrevocably appoints Sellers’ Representative as the agent, proxy and lawful attorney-in-fact for that Seller Party for all purposes of this Agreement, including the full power and agent authority on that Seller Party’s behalf: (i) to consummate the transactions contemplated herein and authorizes any post-Closing matters, including making decisions and taking any action with respect to the matters set forth in Section 2.4 (Post-Closing Adjustment); (ii) to pay that Seller Party’s expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date of this Agreement); (iii) to disburse any funds received hereunder to that Seller Party and each other Seller Party and to hold and disburse funds from the Sellers’ Representative Holdback Amount for the payment of post-Closing fees, expenses and other obligations of the Seller Parties or Sellers’ Representative in connection with the transactions contemplated by this Agreement (with any excess from the Sellers’ Representative Holdback Amount after payment of such post-Closing fees, expenses and other obligations to be disbursed to the Seller); (iv) to endorse and deliver any certificates or instruments representing the LLC Interests and execute any further instruments of assignment as Buyer will reasonably request; (v) to make, execute and deliver on behalf of that Seller Party any amendment or waiver of, or in connection with, this Agreement and the other agreements or documents contemplated hereby as Sellers’ Representative, acting for such in Sellers’ Representative’s sole discretion, may deem necessary or desirable; (vi) to take all other actions to be taken by or on behalf of that Seller Party in connection herewith; (vii) to do each and in such Seller’s name, place every act and stead, in exercise any and all capacitiesrights that the Seller Parties collectively are permitted or required to do or exercise under this Agreement; (viii) to prepare and distribute to each Seller Party any documentation necessary or desirable for the filing of income Tax Returns; and (ix) to make, execute, acknowledge and deliver this Agreement and all other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, letters and other writings, and, in general, to do any and perform every act all things and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are action that Sellers’ Representative, in Sellers’ Representative’s sole and absolute discretion, may consider necessary or appropriate under proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other agreements and documents referred to herein or therein or executed in connection herewith and therewith, including holding and disbursing the Sellers’ Representative Holdback Amount in accordance with the terms of this Agreement, retaining counsel, accountants and other agents, representatives and experts, incurring fees and expenses, asserting or pursuing any claim against Buyer, the Escrow Agreement Company or any other Seller Ancillary Agreement for and on behalf of SellersParty, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment defending any claims by Buyer or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiatingthird parties, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action those claims, conducting negotiations with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this AgreementBuyer, the Escrow Agreement Company and the other Seller Ancillary Agreements and engaging agents and their respective representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiverregarding those claims, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all it being understood that Sellers’ Representative may lawfully do does not have any obligation to take any such actions, and will not have any liability for any failure to take any such actions. Notwithstanding anything to the contrary herein, however, Sellers’ Representative does not have the power to take any action or cause actions arising out of any alleged breach of any representation or warranty in Article 3 or any covenant or agreement contained herein by a particular Seller Party or group of the Seller Parties without the express authorization of that Seller Party or group of the Seller Parties, and Buyer acknowledges this limitation. Each Seller Party acknowledges that this agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller Party. All decisions and actions by Sellers’ Representative (to the extent authorized by this Agreement) are binding upon all of the Seller Parties, and no Seller Party has the right to object, dissent, protest or otherwise contest any decision or action; except that Sellers’ Representative will not take any action where (x) any single Seller Party would be done by virtue hereofheld solely liable for any actual losses (without that Seller Party’s consent) or (y) the action materially and adversely affects the substantive rights or obligations of one Seller Party, or group of Seller Parties, without a similar proportionate effect upon the substantive rights or obligations of all Seller Parties, unless each disproportionately affected Seller Party consents to the action. Without limiting the generality of Notwithstanding the foregoing, Sellers’ Representative shall have full power and authority to interpret all consult with the terms and provisions ESOP Trustee in advance of this Agreement, any decision regarding a resolution of differences that may adversely affect the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and consideration paid for the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerLLC Interests.
(c) The grant Buyer and the Acquired Companies may rely on any action taken or omission to act by Sellers’ Representative, on behalf of authority provided for in this a Seller Party, pursuant to Section 13.7 8.2.6(b) above (i) an “Authorized Action”), and each Authorized Action is coupled with an interest and is being grantedbinding on each Seller Party as fully as if that Seller Party had taken the Authorized Action. Sellers’ Representative, in partits capacity as Sellers’ Representative, has no liability to Buyer or the Company for any Authorized Action, except to the extent that the Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or willful misconduct. Each Seller Party severally, for itself only and not jointly and severally, will indemnify and hold harmless Sellers’ Representative against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Sellers’ Representative in connection with any Proceeding to which Sellers’ Representative is made a party by reason of the fact he is or was acting as an inducement Sellers’ Representative pursuant to Buyers to enter into the terms of this Agreement and any expenses incurred by Sellers’ Representative in connection with the performance of Sellers’ Representative’s duties hereunder; provided, that the ESOP Trust’s liability for such expenses shall be irrevocable limited to and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution only payable from the Escrow AgentSellers’ Representative Holdback Amount.
(d) Sellers’ Representative is not entitled to any fee, commission or other compensation for the performance of Sellers’ Representative’s services, but is entitled to the payment by the Seller Parties of all expenses incurred as Sellers’ Representative; provided, that the ESOP Trust’s liability for its pro rata portion of such expenses shall be limited to and only payable from the Sellers’ Representative Holdback Amount.
(e) Sellers’ Representative does not have by reason of this Agreement a fiduciary relationship in respect of either Sellerany Seller Party, except in respect of amounts received hereunder on behalf of a Seller Party. Sellers’ Representative shall is not be liable to either any Seller Party for any action taken or omitted by Sellers’ Representative or any agent employed by Sellers’ Representative hereunder or under any other document hereunder, or entered into in connection therewithherewith, except that Sellers’ Representative shall is not be relieved of any Liability liability imposed by Law for actual fraudfraud or willful misconduct. Sellers’ Representative is not liable to the Seller Parties for any apportionment or distribution of payments made by Sellers’ Representative in good faith, gross negligence and if any apportionment or willfuldistribution is subsequently determined to have been made in error, the sole recourse of any Seller Party to whom payment was due, but not made, is to recover from the other Seller Parties any payment in excess of the amount to which they are determined to have been entitled. Neither Sellers’ Representative nor any agent employed by Sellers’ Representative will incur any liability to any Seller Party by virtue of the failure or refusal of Sellers’ Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of Sellers’ Representative’s other duties hereunder, except for actions or omissions constituting fraud or bad faith. Buyer and each Acquired Company is hereby relieved from liability from any Seller Party for any acts done by any of them in accordance with such decision, act, consent or instruction of Sellers’ Representative.
(f) All of the indemnities, immunities and powers granted to Sellers’ Representative under this Agreement survive the Closing Date.
Appears in 1 contract
Sellers’ Representative. Seller hereby appoints FRI as their sole representative (a“Seller’s Representative”) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and the agent and authorizes Sellers’ Representative, acting on behalf of Seller for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising purposes under this Agreement, including for the Escrow Agreement purposes of: (i) administering and supervising the conduct of Buyer’s title review pursuant to Article 4 and the conduct of Buyer’s physical inspection of the Assets pursuant to Article 5, including, without limitation, determining any other Seller Ancillary Agreement. All actions taken adjustments to the Purchase Price in accordance with Article 4 or Article 5, giving and receiving environmental reports, materials, and assessments as provided in Article 5; (ii) entering into the escrow agreement for the Deposit and receiving the Deposit and the Purchase Price pursuant to Section 2.1, Section 2.2 and Section 12.3 and, if applicable, the Final Purchase Price pursuant to Section 13.1; (iii) determining whether the conditions to Closing in Section 10.1 have been satisfied and supervising the Closing, including waiving any such condition if Seller’s Representative, in its sole discretion, determines that such waiver is appropriate; (iv) taking any action that may be necessary or desirable, as determined by Sellers’ Representative hereunderin its sole discretion, under in connection with the Escrow termination of this Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take accordance with Section 11.1; (v) taking any and all actions which it believes are that may be necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellersdesirable, as fully as if Sellers were acting on their own behalfdetermined by Seller’s Representative in its sole discretion, including:
(i) receiving in connection with the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf amendment of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf waivers of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out term of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
; (vi) taking any and all actions that may be necessary or desirable, as determined by Seller’s Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to Seller in connection with the transactions contemplated by this Agreement; (vii) granting any consent or approval on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of Seller under this Agreement, the Escrow Agreement ; and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(viiviii) taking any and all action other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by Seller’s Representative on behalf of Sellers from time Seller. As the representative of Seller, Seller’s Representative shall act as the agent for Seller, shall have authority to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under bind Seller in accordance with this Agreement, and Buyer may rely on such appointment and authority. Executed on the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions dates set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent acknowledgments below but effective as of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described aboveEffective Time. By: FPC GP, as fully to all intents and purposes as such Seller might or could do in personLLC, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereofits General Partner By: /s/ C▇▇▇▇▇▇ ▇▇▇▇▇▇ C▇▇▇▇▇▇ ▇▇▇▇▇▇, VP Land & Acquisitions By: BDT GP, LLC, its General Partner By: /s/ B▇▇▇▇ ▇. Without limiting the generality ▇▇▇▇▇▇ B▇▇▇▇ ▇. ▇▇▇▇▇▇, President By: M▇▇▇▇▇▇▇ ▇▇, LLC, its General Partner By: /s/ S▇▇▇▇▇▇ ▇. ▇▇▇▇▇ S▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President By: Grasslands GP, LLC, its General Partner By: /s/ C▇▇▇▇▇▇ ▇▇▇▇▇▇ C▇▇▇▇▇▇ ▇▇▇▇▇▇, President By: SHBL Management, Inc., its General Partner By: /s/ B▇▇▇▇ ▇▇▇▇ B▇▇▇▇ ▇▇▇▇, President By: /s/ C▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: C▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: VP of the foregoingLand & Acquisition By: /s/ K▇▇▇▇ ▇▇▇▇▇▇▇ K▇▇▇▇ ▇▇▇▇▇▇▇, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulChief Executive Officer
Appears in 1 contract
Sellers’ Representative. (a) Sellers have agreed that it is desirable to designate a representative to act on behalf of the Sellers for certain limited purposes, as specified herein. Each Seller irrevocably constitutes and hereby appoints VPM as “the Sellers’ Representative” Representative to act as the such Seller’s true and lawful attorney-in-fact with full power of substitution to (i) determine the Final Purchase Price and agent and authorizes to pay Sellers’ Representativeexpenses in connection with the determination of the Final Purchase Price, acting for such Seller (ii) execute and in such Seller’s namedeliver the Escrow Agreement on behalf of Sellers and take all actions contemplated by the Escrow Agreement on behalf of Sellers, place (iii) execute all documents and steadtake all other actions that may be necessary, in convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, (iv) make all determinations, elections, consents, notices, agreements and other actions permitted or required under or pursuant to this Agreement and the Escrow Agreement, (v) administer this Agreement and the Escrow Agreement, (vi) amend or waive any term of this Agreement and all capacitiesthe Escrow Agreement, to do and perform every act and thing required (vii) settle, compromise or permitted to be done otherwise resolve any claim or dispute under or with respect to this Agreement and the Escrow Agreement, including any claim for indemnification asserted pursuant to Article VIII, and (viii) otherwise exercise all matters arising rights of the Sellers and otherwise act on behalf of the Sellers under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary in connection with the transactions contemplated by this Agreement shall be binding upon all Sellers and their respective heirsthe Escrow Agreement, estates, executors, personal representatives and successors and permitted assigns in each case as if expressly confirmed the applicable Seller had personally done such act.
(b) All determinations, elections, consents, notices, agreements and ratified in writing other actions permitted or required to be made by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate the Sellers under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and the transactions contemplated hereby or thereby shall be made exclusively by the Sellers’ Representative on behalf of the Sellers, .
(c) Buyer and the Escrow Agent shall be entitled to rely upon any document or other paper delivered by the Sellers’ Representative as fully as if Sellers were acting on their own behalf, including:
(i) receiving genuine and correct, and (ii) having been duly signed or sent by the Estimated Closing Date Cash Payment Sellers’ Representative, and neither the Buyer nor Escrow Agent shall not be liable to any Seller for any action taken or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant omitted to the Escrow Agreement and distributing such funds in accordance with this Agreement be taken by Buyer or the Escrow Agreement, as applicable;Agent in such reliance.
(iid) participating in Any expenses incurred by the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf with the performance of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated Representative’s duties under this Agreement, Agreement shall be the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent personal responsibility of the Sellers’ Representative.
(be) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that The Sellers’ Representative may lawfully do resign at any time, and the Sellers’ Representative may be removed by the unanimous vote of Sellers. In the event that the Sellers’ Representative has resigned or cause to be done by virtue hereof. Without limiting the generality of the foregoingbeen removed, a new Sellers’ Representative shall have full power and authority be appointed by the vote of Sellers, such appointment to interpret all become effective upon the terms and provisions written acceptance thereof by the new Sellers’ Representative; provided that no resignation or removal of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for shall be effective until such time as the new Sellers’ Representative has been effectively appointed and notice of such appointment has been delivered to Buyer. The Sellers’ Representative shall at all times be entitled to rely on any notice contemplated by directions received from the Sellers. The Sellers’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem reasonably necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Sellers’ Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(f) Buyer and its Affiliates shall be entitled to deal exclusively with the Sellers’ Representative with respect to all matters with respect to the Sellers (in their capacities as such) arising under or related to this Agreement, Agreement or the Escrow Agreement or any of the transactions contemplated hereby. Buyer and its Affiliates shall be entitled to rely upon, and shall be fully protected in relying upon, any act or omission of, or any other Seller Ancillary Agreement to be given to either Seller. A successor to exercise of power or authority by, the Sellers’ Representative may be chosen by a majority in interest without independent investigation. Neither Buyer nor any of Sellers, provided that notice thereof is given promptly by its Affiliates shall have any liability to any Seller or any other constituencies for any act or omission of the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerRepresentative.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal Logistics Holdings, Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes At the Closing, Gryphon Partners III, L.P. shall be constituted and appoints VPM appointed as “the Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and For purposes of this Agreement, the Escrow 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 other Seller Ancillary Agreements Escrow Agreement, with full power and engaging agents and representatives authority on such Company Stockholder’s behalf (including accountants and legal counseli) to assist consummate the transactions contemplated herein, (ii) to pay such Company Stockholder’s expenses (whether incurred on or after the date hereof) incurred in connection herewith with the negotiation and therewith;
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) taking any to negotiate, settle, compromise and otherwise handle all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated disputes under this Agreement, the Escrow Agreement or including without limitation, disputes regarding Estimated Working Capital and any other Seller Ancillary Agreement;
adjustment pursuant to Section 2.10, (viii) delivering all notices required to be delivered by either Seller; and
waive any condition to the obligation of the Company Stockholders to consummate the transactions contemplated herein, (ix) receiving to give and receive notices on behalf of the Company Stockholders and (x) to do each and every act and exercise any and all notices rights which such Company Stockholder is, or the Company Stockholders collectively are, permitted or required to be delivered to either Sellerdo or exercise under this Agreement. No Seller may take any The Company Stockholders, by approving the principal terms of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without Merger and/or accepting the prior written consent of the Sellers’ Representative.
(b) Each Seller grants consideration payable to them hereunder, irrevocably grant unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulto
Appears in 1 contract
Sellers’ Representative. (a) Each of the Other Stockholder Sellers hereby irrevocably appoints the Principal Seller irrevocably constitutes and appoints VPM as (“Sellers’ Representative” to act ”) as such Seller’s true and lawful Other Stockholder Sellers’ representative, attorney-in-fact and agent and authorizes Sellers’ Representativeagent, acting for such Seller and with full power of substitution to act in such Seller’s the name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead of such Seller with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement Note and the Lock-Up Agreement, and to act on behalf of such Seller in any amendment of or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary litigation or appropriate under arbitration involving this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement and to do or any other Seller Ancillary Agreement for refrain from doing all such further acts and on behalf of Sellersthings, and to execute all such documents, as fully as if Sellers were acting on their own behalfsuch Sellers’ Representative shall deem, includingin consultation with ▇▇▇▇ ▇▇▇▇, necessary or appropriate in conjunction with any of the Contemplated Transactions, this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement, including the power:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling take all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully waiver of any condition to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality obligations of the foregoing, Sellers’ Representative shall have full power and authority Sellers to interpret all consummate the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice transactions contemplated by this Agreement, the Escrow Agreement Agreement, the Escrow Note and the Lock-Up Agreement;
(ii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, consents, amendments and other documents required or any other Seller Ancillary Agreement permitted to be given to either Seller. A successor to in connection with the 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 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, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement, including service of process in connection with arbitration;
(iv) to take all actions which under this Agreement, the Escrow Agreement, the Escrow Note and the Lock-Up Agreement may be chosen taken by a majority in interest such Seller and to do or refrain from doing any further act or deed on behalf of Sellers, provided that notice thereof is given promptly by the successor such Seller which Sellers’ Representative deems necessary or appropriate in their sole discretion relating to Buyers the subject matter of this Agreement, the Escrow Agreement, the Escrow Note and Lock-Up Agreement as fully and completely as such Seller could do if personally present; and
(v) to receive all amounts paid to the Sellers’ Representative under 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 Agent and to each SellerNote.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(db) Sellers’ Representative shall not have incur any liability to the Sellers with respect to any action taken or suffered by reason it or omitted hereunder as Sellers’ Representative while acting in good faith and in the exercise of this Agreement a fiduciary relationship reasonable judgment. Sellers’ Representative may, in respect all questions arising hereunder, rely on the advice of either Seller. 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 either Seller for any action taken anyone.
(c) A decision, act, consent or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that instruction of the Sellers’ Representative shall constitute a decision, act, consent or instruction from all of the Sellers, and shall be final, binding and conclusive upon each of the Sellers. The Corporation 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 every Seller.
(d) Notwithstanding the above, the Sellers’ Representative may not be relieved amend this Agreement, the Escrow Agreement, the Escrow Note or the Lock-Up Agreement to (i) create any personal liability of any Liability imposed 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 such affected Seller or group of the Sellers.
(e) If the Principal Seller becomes unable or no longer desires to serve as Sellers’ Representative such other Person or Persons as may be designated by Law for actual frauda majority-in-interest of the Sellers, gross negligence or willfulshall succeed as Sellers’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes Party agrees that Innovated Assets, LLC is hereby constituted and appoints VPM appointed as agent and attorney-in-fact as the “Sellers’ Representative” to act as such Seller’s true with full power and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each right of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement substitution for and on behalf of Sellerseach Seller Party, as fully as if Sellers were acting on their own behalf, including:
(i) receiving with the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers sole and receiving exclusive right and power on behalf of Sellers any amounts disbursed pursuant each of them to the Escrow Agreement execute and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of deliver any and all Sellers pursuant certificates and other documents required to Article XI;
(iv) initiating or taking be executed and delivered by any action 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 any suitto, action or proceeding without limitation, claims arising out under Article VIII of or related to this Agreement;
(v) executing Agreement and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes disputes arising under Article II of this Agreement, to make amendments and grant waivers hereunder or any other Ancillary Document, and to take all actions necessary or appropriate in the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf judgment of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, for the Escrow Agreement or accomplishment of the foregoing and any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of that the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable Representative may, in his sole discretion, determine to be done appropriate in connection with the matters described aboveconsummation of the purchase and sale of the Purchased Interests or any of the other Transactions, as fully including authorizing the delivery to all intents Buyer of cash from the Escrow Fund in satisfaction of any amounts owed to Buyer pursuant to Article VIII and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Article II of this Agreement. No bond shall be required of Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoingRepresentative, and Sellers’ Representative shall have full power and authority receive no compensation for services rendered. Notices or communications to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to from Sellers’ Representative for any shall constitute notice contemplated by this Agreementto or from the Company and each Seller Members, as applicable. The Seller Members agree and acknowledge that the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest power of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for attorney granted in this Section 13.7 5.07: (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, irrevocable; and (ii) may be delegated by the Sellers’ Representative. In the event of the death, incapacity or resignation of Innovated Assets, LLC, then, the remaining Seller Members shall survive any distribution from the Escrow Agent.
(d) jointly elect a new Sellers’ Representative. A decision, act, consent or instruction of Sellers’ Representative shall not have by reason constitute a decision of all of Seller Members and shall be final, binding and conclusive upon each of such Parties, and Buyer may rely upon any written decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of each of such Parties and Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to this Agreement a fiduciary relationship (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 respect accordance with such decision, act, consent, or instruction of either SellerSellers’ Representative. Sellers’ Representative shall, at the expense of the Seller Members, be entitled to engage such counsel, experts and 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 not be liable have no liability to either any of Seller Members for any action actions 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, Liability or omitted 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 legal counsel retained by Sellers’ Representative hereunder or under and including any other document hereunder, or in connection therewith, except that Escrow Indemnification Liabilities of the Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulRepresentative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as Macquarie Infrastructure Partners Inc. (“Sellers’ Representative” to act MIP Inc.”) as such Seller’s true and lawful representative, attorney-in-fact and agent and authorizes (as such, the “Sellers’ Representative”), acting for such Seller and with full power of substitution to act in such Seller’s the name, place and stead, stead of such Seller with respect to the Securities Purchase and the Merger and to act on behalf of such Seller in any amendment of or litigation or arbitration involving this Agreement and all capacities, to do or refrain from doing all such further acts and perform every act things, and thing to execute all such documents, as such Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement, including the power:
(i) to take any action required or permitted to be done with respect to all matters arising under taken by the Sellers’ Representative as expressly set forth in this Agreement, including to make all determinations in respect of the Escrow Agreement Base Purchase Price and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under Final Purchase Price and the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all portions thereof payable to the Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds Management Holders in accordance with this Agreement or the Escrow Agreement, as applicableArticle 2;
(ii) participating to take all action necessary or desirable in connection with the adjustment, objection, resolution waiver of any condition to the obligations of Sellers to consummate the Securities Purchase and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XIthe Merger;
(iii) initiatingto negotiate, consenting toexecute and deliver all ancillary agreements, compromising certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or settling all indemnity claims or obligations or taking permitted to be given in connection with the Securities Purchase and the Merger (it being understood that such Sellers, shall execute and deliver any other actions on behalf of any and all Sellers pursuant such documents which the Sellers’ Representative agrees to Article XIexecute);
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related terminate this Agreement if Sellers are entitled to this Agreementdo so;
(v) executing to give and performing receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the Escrow Agreement or any other Seller Ancillary Agreement claims under this Agreement, including service of process in accordance connection with its terms;arbitration; and
(vi) taking any and to take all actions which under this Agreement that may be taken by Sellers and to do or refrain from doing any further act or deed on behalf of Sellers from time to time as which the Sellers’ Representative may deem deems necessary or desirable appropriate in its sole discretion relating to fulfill the interests subject matter of this Agreement as fully and purposes of 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 Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary Representatives, including in the case of fraud, gross negligence or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, bad faith on the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent part of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that The Sellers’ Representative may lawfully do will not be liable for any act taken or cause to be done omitted by virtue hereof. Without limiting the generality of the foregoingit as permitted under this Agreement, except if such act is taken as Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof omitted in bad faith or thereof on behalf of all Sellers and their successorsgross negligence. Buyers and the Escrow Agent are entitled and authorized to give notices only to The Sellers’ Representative for will also be fully protected in relying upon any notice contemplated by this Agreementwritten notice, the Escrow Agreement demand, certificate or any other Seller Ancillary Agreement document that it in good faith believes to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellergenuine (including facsimiles thereof).
(c) The Sellers agree, severally but not jointly, to indemnify (in accordance with their respective direct and indirect ownership of MIPT as set forth on Appendix B) the Sellers’ Representative 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, arising out of or in connection with the Sellers’ Representative’s carrying out its duties under this Agreement, including costs and expenses of successfully defending the Sellers’ Representative 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.
(d) If MIP Inc. resigns in writing as Sellers’ Representative or otherwise 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 (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 Sellers’ Representative, such Successor Sellers’ Representative shall thereupon succeed to and become vested with all of the powers and duties and obligations of the original Sellers’ Representative without further act, and the original Sellers’ Representative shall be discharged from its duties and obligations hereunder but shall continue to have the benefits of the 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 all actions taken or omitted to be taken by it while acting as Sellers’ Representative.
(e) All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing and/or termination of this Agreement.
(f) The grant of authority to the Sellers’ Representative provided for in this Section 13.7 10.14, (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretoSeller, and (ii) shall survive any distribution from the Escrow AgentClosing.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)
Sellers’ Representative. (a) Each Seller has irrevocably constitutes constituted and appoints VPM as “appointed Sellers’ Representative” to act Representative as such Seller’s its true and lawful agent and attorney-in-fact and agent and authorizes fact, with full power of substitution to perform the duties of Sellers’ Representative, acting for such Seller Representative under the terms of this Agreement and to act in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead with respect to all matters arising under transactions contemplated by and all terms and provisions of this Agreement, the Escrow Agreement and the Related Documents, including without limitation: to act on such Seller’s behalf in any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Proceeding involving this Agreement or under any other Seller Ancillary Agreement shall be binding upon Related Document, to give and receive notices and communications on behalf of the Sellers where applicable, and to do or refrain from doing all Sellers such further acts and their respective heirsthings, estates, executors, personal representatives and successors and permitted assigns to execute all such documents as if expressly confirmed and ratified in writing by each of them. the Sellers’ Representative shall take any and all actions which it believes are deem necessary or appropriate under in connection with the transactions contemplated by this AgreementAgreement and to the extent it is authorized to do so hereunder, including the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
power to (i) receiving to incur reasonable expenses in the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf fulfillment of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreementits duties hereunder, as applicable;
(ii) participating in the adjustmentto agree to, objectionnegotiate, resolution enter into settlements and other processes or procedures compromises of, and demand arbitration and comply with courts orders and awards of arbitrators with respect to claims for indemnification pursuant to this Agreement or either Seller Ancillary Agreementany Related Document, including pursuant to Articles III or XI;
(iii) initiatingexecute and deliver all amendments, consenting towaivers, compromising any Related Document, stock powers, certificates and documents that the Sellers’ Representative deems reasonably necessary or settling all indemnity claims or obligations or taking any other actions on behalf appropriate in connection with the consummation of any and all Sellers pursuant to Article XI;
the transactions contemplated by this Agreement, (iv) initiating or taking any action with respect to any suit, action or proceeding arising pay the reasonable out of or related to pocket fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement;
, (v) executing handle of any indemnification dispute with the Purchaser post-Closing of the transactions contemplated by this Agreement, and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf receive service of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist process in connection herewith and therewith;
(vii) taking with any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated claims under this Agreement, where applicable. Notwithstanding the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of foregoing, the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of foregoing appointment, the Sellers’ RepresentativeRepresentative undertakings, and all arrangements referred to hereunder below, shall not apply to a Solo Shareholder Claim.
(b) Each Seller grants unto said attorney-in-fact and agent full The Sellers’ Representative’s power and authority to do and perform each and every act and thing necessary duties may be exercised, discharged or desirable to be done in connection with performed by any person or representative authorized by the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative to act on its behalf. The appointment of the Sellers’ Representative shall be deemed coupled with an interest and shall be irrevocable, and the Purchaser and any other Person may lawfully conclusively and absolutely rely, without inquiry, upon any action of the Sellers’ Representative in all matters referred to herein. The Sellers hereby confirm all that the Sellers’ Representative shall do or cause to be done by virtue of his appointment as the Sellers’ Representative in accordance with the provisions hereof. Without limiting the generality of the foregoing, The Sellers’ Representative shall have full power act for all Sellers on all of the matters set forth in this Agreement in the manner the Sellers’ Representative, in his discretion, believes to be in the best interest of the Sellers and authority to interpret all consistent with the terms and provisions of Sellers’ Representative’s obligations under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement Sellers’ Representative shall not be responsible or liable to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either any Seller and shall be binding on any successor theretofor, and each Seller hereby irrevocably releases the Sellers’ Representative (iiin its capacity as such) shall survive and its respective officers, directors, shareholders, agents, employees and/or anyone on its behalf, from, any distribution from liability, losses or damages any Seller may incur or suffer as a result of any act, failure or omission whatsoever of the Escrow AgentSellers’ 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 not have by reason participate as well in his capacity as a Seller), the Sellers’ Representative in his capacity as such from and against any losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs or expenses, other than any such losses or damages arising from fraudulent acts or omissions on behalf of the Sellers’ Representative, incurred in the performance of his powers or duties as the Sellers’ Representative under this Agreement a fiduciary relationship (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 respect all questions arising hereunder, rely on the advice of either Seller. 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 either 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 for any action taken or omitted by shall otherwise exist against the Sellers’ Representative.
(f) The Sellers’ Representative may resign from his position as Sellers’ Representative hereunder or under at any other document hereundertime, or by delivery of at least thirty (30) days’ prior written notice to the Shareholders. The Sellers representing in connection therewithinterest at least sixty percent (60%) of the aggregate Pro Rata Portion attributable to all Sellers shall have the authority, except that 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.
(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 relieved 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 case 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 imposed 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 Law 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 actual fraud, gross negligence or willfulany reason.
Appears in 1 contract
Sellers’ Representative. (a) a. Each Seller Party hereby irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act Seller Representative as such Seller’s true Seller Representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for to act on behalf of such Seller Party with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done taken by Seller Representative pursuant to this Agreement, including the exercise of the power 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 2.5;
iii. agree to, negotiate, litigate, arbitrate, resolve, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer pursuant to Article VII;
iv. execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Transaction Document;
v. make all elections or decisions contemplated by this Agreement and any Transaction Document;
vi. engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Seller Representative in complying with its duties and obligations; and
vii. take all actions necessary or appropriate in the good faith judgment of Seller Representative for the accomplishment of the foregoing.
b. Buyer shall be entitled to deal exclusively with Seller Representative on all matters arising relating to this Agreement (including Section 2.5 and Article VII) 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 Seller Representative, and on any other action taken or purported to be taken on behalf of any Seller Party by Seller Representative, as being fully binding upon such Seller Party. Notices or communications to or from Seller Representative shall constitute notice to or from each of the Seller Parties. Any decision or action by Seller Representative under this Agreement, including any agreement between Seller Representative and Buyer relating to the Escrow Agreement and defense, payment or settlement of any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate claims for indemnification under this Agreement, the Escrow Agreement shall constitute a decision or any other action of all Seller Ancillary Agreement for Parties and on behalf of Sellersshall be final, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in binding and conclusive upon each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either SellerParty. No Seller may take any of Party shall have the actions set forth in paragraphs (i) through (ix) right to object to, dissent from, protest or otherwise contest such decision or action. The provisions of this Section 13.7(a) without 8.14, including the prior written consent power of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated attorney granted by this AgreementSection 8.14, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellersare independent and severable, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers are irrevocable and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedshall not be terminated by any act of any one Seller Party, or by operation of Law, whether by death or other event.
c. The Seller Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Seller Parties; provided, however, in part, as an inducement to Buyers to enter into this Agreement and no event shall Seller Representative resign or be irrevocable and survive removed without Seller Parties having first appointed a new Seller Representative who shall assume such duties immediately upon the resignation or removal of Seller Representative. In the event of the death, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and Representative, a new Seller Representative shall be binding appointed by the vote or written consent of Seller Parties. Notice of such vote or a copy of the written consent appointing such new Seller 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 shall be entitled to rely on any successor thereto, the decisions and (iiactions of the prior Seller Representative as described in Section 8.14(a) shall survive any distribution from the Escrow Agentabove.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ d. The Seller Representative shall not be liable to either Seller Parties for any action actions taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewithpursuant to this Agreement, except that Sellers’ Representative to the extent such actions shall not be relieved have been determined by a court of any Liability imposed by Law for actual fraud, competent jurisdiction to have constituted gross negligence or willfulinvolved 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 Seller Representative shall be conclusive evidence of good faith). Seller Parties shall jointly and severally indemnify and hold harmless Seller Representative from and against, compensate him, her or it for, reimburse him, her or it for and pay any and all losses, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his activities as Seller Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, Fraud, intentional misconduct or bad faith of the Seller Representative, the Seller Representative shall reimburse Seller Parties the amount of such indemnified Representative Loss attributable to such gross negligence, Fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied from Seller Parties jointly and severally.
Appears in 1 contract
Sellers’ Representative. (a) Each In order to efficiently administer (i) the determination of the 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 irrevocably constitutes and appoints VPM Deliveries, Sellers hereby designate BC Sellers’ Representative LLC as their representative (the “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes ”).
(b) Sellers, by approving this Agreement or by executing one of the Seller Deliveries, shall authorize the Sellers’ RepresentativeRepresentative (i) to make all decisions relating to the determination of the Merger Consideration and the Actual Closing Date Working Capital Amount, acting for such Seller and in such Seller’s name, place and stead(ii) to make all decisions relating to the distribution of any amounts payable or distributable to Sellers hereunder, in accordance with this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any and all capacitiescondition to the obligations of the Company to consummate the Contemplated Transactions, to do and perform every act and thing required or permitted to be done the defense and/or settlement of any Proceedings with respect to all matters arising under this Agreement, the Escrow Agreement and which any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall Buyer Indemnified Party may be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed entitled to be indemnified pursuant to the Escrow Agreement Section 9 hereof, (iv) to give and distributing such funds in accordance with receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as applicableis contemplated to be taken by or on behalf of Sellers by the terms of this Agreement, (vi) to take all other 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 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 no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(e) By approving this Agreement, or by executing a Letter of Transmittal, an Option Cancellation and Payment Acknowledgement or a Warrant Cancellation and Payment Acknowledgement, Sellers agree that:
(i) Parent, Buyer, the Surviving Corporation and 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 the settlement of any claims for indemnification by any Buyer Indemnified Party pursuant to Section 9 hereof or any other actions 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) participating in all actions, decisions and instructions of the adjustmentSellers’ Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers’ Representative for any action taken, objectiondecision made or instruction given by the Sellers’ Representative under this Agreement, resolution and other processes except for fraud or procedures pursuant to willful breach of this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XIby the Sellers’ Representative;
(iii) initiatingthe provisions of this Section 1.9 are independent and severable, consenting to, compromising are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or settling all indemnity claims or obligations or taking remedies that any other actions on behalf of any and all Sellers pursuant to Article XISeller may have in connection with the Contemplated Transactions;
(iv) initiating the provisions of this Section 1.9 shall be binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement or taking any action with respect the Escrow Agreement to any suita Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, action whether pursuant to testamentary disposition, the laws of descent and distribution or proceeding arising out of or related to this Agreementotherwise;
(v) executing the Company Fees and performing Expenses shall include the Escrow Agreement 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 by the Sellers’ Representative 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 any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from professional advisors retained by the Sellers’ Representative). From time to time as after the Effective Time, Sellers’ Representative may deem necessary 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 desirable to fulfill the interests and purposes of this Agreementasserted by or on behalf of, Sellers hereunder or under the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) final distribution to assist Sellers of all monies that are or could be distributable to them hereunder or under the Escrow Agreement shall be distributed to Sellers in connection herewith and therewith;
(vii) taking any and their respective percentages based upon all action on behalf shares of Sellers from time to time as Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding; provided, however, that if the Sellers’ Representative may deem necessary or desirable incurs costs and expenses disproportionately due to make or enter into any waivera Seller’s breach of representations and warranties made by such Seller in one of the Seller Deliveries, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, such breaching Seller shall reimburse the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either SellerSellers’ Representative for the additional costs and expenses disproportionately incurred; and
(ixvi) receiving they will indemnify and hold harmless the Sellers’ Representative, severally and not jointly, from and against any and all notices required damages 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, or any related agreement or instrument or any action taken or omitted to be delivered to either Seller. No Seller may take any of taken by the actions set forth Sellers’ Representative under or in paragraphs (i) through (ix) of this Section 13.7(a) without connection herewith, unless such damages resulted solely from the prior written consent bad faith of the Sellers’ Representative.
(bf) Each Seller grants unto said attorney-in-fact All fees and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with expenses incurred by the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause in excess of $500,000 shall be paid from any funds otherwise due to be done by virtue hereof. Without limiting Sellers (including from the generality of the foregoingEscrowed Amount, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreementif any, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only after such amount is released to Sellers’ Representative for any notice contemplated by this AgreementRepresentative) in proportion to their ownership of all shares of Preferred Stock that are not converted at the Effective Time, plus the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority Fully Diluted Shares Outstanding as set forth in interest Section 2.4(a) of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers Company Disclosure Schedule attached hereto and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution if no funds are available from the Escrow AgentEscrowed Amount, then directly from 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.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is hereby constituted and appoints VPM appointed by the Sellers and the UPC Stockholders as agent (the “Sellers’ Sellers Representative” “) for and on behalf of the Sellers and the UPC Stockholders, with full and unqualified power to delegate to one or more Persons the authority granted to him hereunder, to act as such Seller’s true each of their agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in such Seller’s name, place and stead, in any and all capacitieswith full power of substitution, to do take all actions called for by this Agreement and perform every act the Ancillary Agreements, on their individual and thing collective behalf, as such Sellers Representative shall deem necessary and appropriate in connection with the transactions contemplated under this Agreement, including, without limitation, the power:
(i) to execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be done given in connection with the consummation of the transactions contemplated by this Agreement;
(ii) to give and receive all notices and communications to be given or received under this Agreement or the Ancillary Agreements and to receive service of process in connection with any claims under this Agreement or the Ancillary Agreements;
(iii) 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, and to take all matters arising actions necessary or appropriate in the judgment of the Sellers Representative for the accomplishment of the foregoing; and
(iv) to take all actions which under this Agreement, the Escrow Agreement and the Ancillary Agreements may be taken by the Sellers Representative and to do or refrain from doing any other Seller Ancillary Agreementfurther act or deed on behalf of the Sellers or UPC Stockholders that 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 or UPC Stockholders could do if personally present. All actions taken decisions and acts by Sellers’ the Sellers Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all of the Sellers and their respective heirsUPC Stockholders and no Seller or UPC Stockholder shall have the right to object, estatesdissent, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary protest or appropriate under this Agreement, otherwise contest the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereofsame. Without limiting the generality of the foregoing, Sellers’ any notice delivered by the Buyers to the Sellers Representative shall have full power be treated as having been delivered to each Seller and authority UPC Stockholder entitled thereto, regardless of the actions taken by the Sellers Representative following receipt of such notice.
(b) The Buyers shall be entitled to interpret deal exclusively with the Sellers Representative on all the terms and provisions of matters relating to this Agreement, the Escrow Agreement and the Ancillary Agreements, and shall be entitled to rely conclusively (without further evidence of any other Seller Ancillary Agreement and kind whatsoever) on any document executed or purported to consent to any amendment or waiver hereof or thereof be executed on behalf of all any Seller or UPC Stockholder by the Sellers Representative, and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or on any other Seller Ancillary Agreement action taken or purported to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest taken on behalf of Sellers, provided that notice thereof is given promptly the Sellers or UPC Stockholders by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerSellers Representative, as fully binding upon such Sellers or UPC Stockholders.
(c) The grant In the event of authority provided for in this Section 13.7 (i) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is coupled with an interest and is being grantednot the successor, in part, as an inducement a successor to Buyers to enter into this Agreement and the Sellers Representative shall be irrevocable and survive appointed by a majority vote of the deathUPC Stockholders, incompetency, bankruptcy or liquidation of either Seller and shall with each such UPC Stockholder to be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentgiven an equal vote.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Asset Purchase Agreement (Remy International, Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “The Sellers hereby appoint the Sellers’ Representative” to act Representative as such Seller’s true and lawful attorney-in-fact and agent and authorizes attorney in fact for and on behalf of the Sellers to (i) interpret the terms and provisions of this Agreement and the Ancillary Agreements (other 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, (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 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 may be payable or distributable to any Sellers pursuant to the 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 liabilities incurred by the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and steadcapacity, in any and all capacities, to do and perform every act and thing required or permitted to be done connection with respect to all matters arising under this Agreement, the Escrow Agreement and any the Ancillary Agreements (other Seller Ancillary than the Employment Agreement. All ), and (viii) take all actions taken by necessary or appropriate in the judgment of the Sellers’ Representative hereunderon behalf of the Sellers in connection with this Agreement and the Ancillary Agreements (other than the Employment Agreement).
(b) The Sellers’ Representative, under or any successor hereafter appointed, may resign at any time by written notice to the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers Buyer and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified the Sponsor. Any change in writing by each of them. the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant will become effective upon notice to the Escrow Agreement Buyer and distributing such funds the Sponsor in 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 or to the Escrow Agreement, as applicable;Sellers’ Representative will apply to any successor Sellers’ Representative.
(iic) participating in the adjustment, objection, resolution and other processes The Sellers’ Representative will not be liable for any act done or procedures pursuant to omitted under this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative while acting in good faith, 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 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 deem necessary be. In performing any of its duties under this Agreement or desirable any Ancillary Agreements (other than the Employment Agreement), the Sellers’ Representative will not be liable to fulfill the interests Sellers for any losses that any such Person may incur as a result of any act, or failure to act, by the Sellers’ Representative under this Agreement or any Ancillary Agreements (other than the Employment Agreement), and purposes 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 constituted fraud, gross negligence or willful misconduct. The limitation of liability provisions of this Agreement, Section 11.3(c) will survive the Escrow termination of this Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent resignation of the Sellers’ Representative.
(bd) Each Seller grants unto said attorney-in-fact The Buyer and agent full power the Sponsor shall be entitled to rely exclusively upon any notices and authority to do and perform each and every act and thing necessary or desirable to be done in connection with other acts of the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause relating to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power rights and authority to interpret all the terms obligations hereunder as being legally binding acts of each Seller individually and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellercollectively.
(ce) The grant of authority provided providing for in this Section 13.7 11.3 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either any Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow AgentClosing.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Business Combination Agreement (dMY Technology Group, Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes hereby authorizes and appoints VPM as “directs the Sellers’ Representative” to act Representative as such Seller’s true and lawful its agent, proxy, attorney-in-fact and agent representative under the Transaction Documents to take such action on behalf of such Seller, and authorizes to exercise such rights, power and authority, as are authorized, delegated and granted to the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, Representative pursuant to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, including, without limiting the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereundergenerality of the foregoing, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers execution, delivery and receiving on behalf receipt of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in preparation and delivery of the adjustment, objection, resolution and other processes or procedures certificate pursuant to this Agreement or either Seller Ancillary AgreementSection 4.1(a)(iii) hereof, including pursuant to Articles III or XI;
(iii) initiatingthe right to receive notices and other documentation, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes 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 and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) pursuant to assist in connection herewith and therewith;
Section 6.1 hereof, (vii) taking settlement of any and all action on behalf of claims for which the Sellers from time may be required to time as Sellers’ Representative may deem necessary indemnify or desirable pay to, or entitled to make indemnification or enter into any waiverpayment from, amendment, agreement, opinion, certificate or other document contemplated under Buyer pursuant to this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
and (viii) delivering all notices required to be delivered any other actions contemplated by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth or in paragraphs (i) through (ix) furtherance of this Section 13.7(a) without the prior written consent of the Sellers’ RepresentativeAgreement.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all agrees that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action actions taken or omitted by to be taken under or in connection with this Agreement or the transactions contemplated hereby, except for such actions taken 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 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 relating to the fact that such Person is or was a Sellers’ Representative hereunder or under any other document hereunder, arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection therewithwith this Agreement and the transactions contemplated hereby) except for, except that in any case, acts or omissions which involve conduct known to such Person at the time to constitute a material violation of Law.
(c) Buyer shall be entitled to rely conclusively on the instructions and actions of the Sellers’ Representative required or permitted to be taken by the Sellers’ Representative under any Transaction Document, and no Seller shall not be relieved have any cause of action against Buyer or its Affiliates for any Liability imposed action taken by Law for actual fraud, gross negligence Buyer in reliance upon the instructions or willfuldecisions of the Sellers’ Representative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM ▇▇▇▇ ▇▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s true Representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for as TGS Escrow Agent to act on behalf of such Seller with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers individually or by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under pursuant to this Agreement, including the Escrow Agreement or any other Seller Ancillary Agreement for exercise of the power to give and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including receive notices and communications in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance connection with this Agreement or and the Escrow Agreementtransactions contemplated hereby, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and take all actions on behalf of Sellers from time pursuant to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and take all action on behalf of Sellers from time to time as Sellers’ Representative may deem actions necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, appropriate in the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent judgment of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with Representative for the matters described aboveaccomplishment of the foregoing. More specifically, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that the Sellers’ Representative may lawfully do shall have the authority to make all decisions and determinations and to take all actions (including agreeing to any amendments to this Agreement or cause any Transaction Document to which it is a party or to the termination hereof or thereof) required or permitted hereunder on behalf of each such Seller, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Seller, and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Acquired Company’s Organizational Documents) to be done by virtue hereofgiven to any Seller hereunder or pursuant to any Transaction Document shall be deemed so given if given to the Sellers’ Representative. Without limiting the generality of the foregoing, the Sellers’ Representative shall be authorized, in connection with the Closing, to execute all certificates, documents and agreements on behalf of and in the name of Sellers necessary to effectuate the Closing and related transactions. The Sellers’ Representative shall be authorized to take all actions on behalf of the Sellers in connection with any claims made under Article VIII of this Agreement and any TGS Claims, to defend or settle such claims, and to make payments in respect of such claims on behalf of Sellers.
(b) No Seller shall have full power and authority the right to interpret all object to, dissent from, protest or otherwise contest any such decision or action of the terms and Sellers’ Representative. The provisions of this AgreementSection 10.01, including the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf power of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated attorney granted by this AgreementSection 10.01, the Escrow Agreement are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller, or any by operation of Law, whether by death or other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerevent.
(c) The grant Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedthe holders of a majority of the Acquired Shares immediately prior to Closing; provided, however, in part, as an inducement to Buyers to enter into this Agreement and no event shall Sellers’ Representative resign or be irrevocable and survive 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, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and Sellers’ Representative, a new Sellers’ Representative shall be binding appointed by the vote of the holders of a majority of the Acquired Shares immediately prior to Closing. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer promptly following such vote or consent, such appointment to be effective upon the date indicated in such consent; provided, that until such notice is received, Buyer shall be entitled to rely on any successor thereto, the decisions and (iiactions of the prior Sellers’ Representative as described in Section 10.01(a) shall survive any distribution from the Escrow Agentabove.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. The Sellers’ Representative shall not be liable to either Seller the Sellers for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted fraud, intentional misconduct or bad faith (it being understood that any action taken act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative hereunder shall be conclusive evidence of good faith). The Sellers shall indemnify and hold harmless Sellers’ Representative from and against, compensate him, her or under it for, reimburse him, her or it for and pay any other document hereunderand all Losses, or arising out of and in connection therewithwith his, except her or its activities as Sellers’ Representative under this Agreement, including without limitation any travel expenses such as transportation, lodging and meals, and attorney fees incurred in connection with Sellers actions as Seller Representative, in each case as such Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Loss or any portion thereof was primarily caused by the fraud, intentional misconduct or bad faith of the Sellers’ Representative, the Sellers’ Representative shall not be relieved reimburse the Sellers the amount of any Liability imposed by Law for actual such indemnified Loss attributable to such fraud, intentional misconduct or bad faith.
(e) Upon the Closing, in accordance with Section 2.01(b)(i), Buyer shall wire to the Sellers’ Representative $1,500,000 (the “Representative Fund Amount”), which the Sellers’ Representative shall hold as agent and for the benefit of the Sellers in a segregated account (the “Representative Fund”) and shall be used for the purposes of paying directly, or reimbursing the Sellers’ Representative for, any third party expenses pursuant to this Agreement or any other Transaction Document. Sellers’ Representative will hold these funds separate from his personal funds and will not use these funds for any personal purposes. The Sellers shall not receive interest or other earnings on amounts in the Representative Fund. The Sellers acknowledge that the Sellers’ Representative is not providing any investment supervision, recommendations or advice. The Sellers’ Representative shall have no responsibility or liability for any loss of principal of the Representative Fund other than as a result of its gross negligence or willfulwillful misconduct. As soon as practicable following the later of (i) the 24-month anniversary of the Closing or (ii) the final resolution in accordance with Article VIII of any indemnification claims by any Buyer Indemnitee prior to the 24-month anniversary of the Closing, the Sellers’ Representative shall distribute the remaining Representative Fund (if any) pro rata among the Sellers in accordance with their respective Shares owned prior to Closing. For tax purposes, the Representative Fund shall be treated as having been received and voluntarily set aside by the Sellers at the time of Closing. The Parties agree that the Sellers’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund.
Appears in 1 contract
Sources: Share Exchange Agreement
Sellers’ Representative. (a) Each Seller, on behalf of such Seller and such Seller’s successors, heirs and permitted assigns, hereby irrevocably constitutes and appoints VPM Holdings as the “Sellers’ Representative” to act as such Seller’s true Sellers’ agent and lawful attorney-in-fact for all purposes set forth in this Agreement, including the full power and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, authority (i) to do and perform every act and thing required or permitted the Transactions to be done with respect to all matters arising 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 Escrow 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 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 in 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, any Indemnitee, or the Sellers’ Representative (other than indemnification claims under Section 8.1(a)), (viii) to interpret the terms of this Agreement and any other 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 Ancillary is permitted or required to do or exercise under this Agreement. All actions taken by .
(b) The Sellers’ Representative hereunder, will have no liability to any Seller for any act done or omitted under this Agreement as the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take while acting in good faith and not in a manner constituting wanton misconduct, and any and all actions which it believes are necessary act done or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed omitted pursuant to the Escrow Agreement and distributing advice of counsel will be conclusive evidence of such funds good faith. The Sellers will severally (in accordance with this Agreement or their Pro Rata Share) indemnify and hold harmless the Escrow Agreement, as applicable;
(ii) participating in Sellers’ Representative from and against any Losses the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary suffer as a result of any such action or desirable omission.
(c) The Sellers’ Representative will receive no compensation for services as the Sellers’ Representative. The Sellers will reimburse the Sellers’ Representative in accordance with their Pro Rata Share for professional fees and expenses of any attorney, accountant or other advisors retained by 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. An amount equal to fulfill the interests Sellers’ 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 purposes out-of-pocket expenses (including costs of professional advisers) incurred by the Sellers’ Representative for its obligations in connection with this Agreement, with any balance of the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary Expense Fund not incurred for such purposes to be distributed to the Sellers in accordance with their Pro Rata Share at such times as determined by Sellers’ Representative.
(d) If the Sellers’ Representative resigns or desirable is otherwise unable or unwilling to make or enter into serve in such 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 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 waiver, amendment, agreement, opinion, certificate or other document contemplated right under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) except through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(be) Each Seller grants unto said The appointment of the Sellers’ Representative as the attorney-in-fact for each Seller as set forth in this Section 11.16 and agent full power all authority hereby conferred are granted and authority to do conferred in consideration of the interest of the other Sellers, is therefore coupled with an interest and perform each is and every will be irrevocable and shall neither be terminated nor otherwise affected by any act and thing necessary of any Seller or desirable to be done in connection with by operation of law, whether by the matters described abovedeath, as fully to all intents and purposes as dissolution, liquidation, incapacity or incompetence of such Seller might or could do in personby the occurrence of any other event. If, hereby ratifying and confirming all that after the execution of this Agreement, any Seller dies, dissolves or liquidates or becomes incapacitated or incompetent, the Sellers’ Representative 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 lawfully do or cause be necessary and to give such instructions to his personal representatives as may be done by virtue necessary so that its successors will remain subject to this Agreement and carry out the full intent and purposes hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to Section 11.16 will not be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly affected by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each subsequent incapacity or mental incompetency of any Seller.
(cf) The grant Each Seller and the Sellers’ Representative acknowledge and agree that Buyer may rely on Sellers’ appointment of the Sellers’ Representative 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 authority 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 Section 13.7 (i) is coupled Agreement shall constitute a full acquittance of Buyer with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor respect thereto, and (ii) Buyer shall survive any distribution from have no obligation to see to the Escrow Agentapplication of such payments.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, including counterparts hereof, each Seller hereby irrevocably constitutes and appoints VPM as “the Sellers’ Representative” to act , as such Seller’s the true and lawful agent and attorney-in-fact and agent and authorizes Sellers’ Representative, acting for of such Seller and with full powers of substitution to act in such Seller’s the name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead of such Seller with respect to all matters arising the performance on behalf of such Seller under the terms and provisions of this Agreement and the Escrow Agreement, as the Escrow Agreement same may be from time to time amended, and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderto do or refrain from doing all such further acts and things, under and to execute all such documents on such Seller’s behalf, as the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, Agreement or the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalfAgreement, including:
(i) receiving the Estimated Closing Date Cash Payment to agree upon or compromise any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant matter related to the Escrow Agreement calculation of the August Payment and distributing such funds in accordance with this Agreement the Contingent Payments or the Escrow Agreement, as applicableotherwise or to other payments to be made;
(ii) participating to act for such Seller with respect to all indemnification matters referred to in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary and the Escrow Agreement, including pursuant the right to Articles III compromise on behalf of such Seller any indemnification claim made by or XIagainst such Seller;
(iii) initiating, consenting to, compromising or settling to act for such Seller with respect to all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XIpost-Closing matters;
(iv) initiating to terminate, amend, or taking waive any action with respect to any suit, action or proceeding arising out provision of or related to this Agreement and the Escrow Agreement;
(v) executing to employ and performing obtain the Escrow Agreement advice of legal counsel, accountants and other professional advisors as the Sellers’ Representative, in his, her or any other Seller Ancillary Agreement its sole discretion, deems necessary or advisable in accordance with the performance of his, her or its termsduties as the Sellers’ Representative and to rely on their advice and counsel;
(vi) taking to incur and pay out of the Sellers’ Representative Fund expenses, including fees of attorneys, accountants and other advisers, incurred by the Sellers’ Representative pursuant to the transactions contemplated by this Agreement, and any other fees and all actions on behalf of expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing, and to disburse to Sellers from time to time as pro rata any amounts remaining in the Sellers’ Representative may deem necessary or desirable to fulfill Fund in accordance with the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions respective percentages set forth in paragraphs (i) through (ix) of this Section 13.7(a) without Schedule 2.3(a)(ii), in the prior written consent sole and absolute discretion of the Sellers’ Representative; and
(vii) to do or refrain from doing any further act or deed on behalf of such Seller which the Sellers’ Representative deems necessary or appropriate in his, her or its sole discretion relating to the subject matter of this Agreement and the Escrow Agreement (including amending or waiving any term or provision hereof or thereof) as fully and completely as any of such Seller could do if personally present and acting.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with The appointment of the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person may lawfully conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the acts of the Sellers in all matters referred to in this Agreement and the Escrow Agreement. Each of the Sellers hereby ratifies and confirms all things that the Sellers’ Representative shall do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, appointment of the Sellers’ Representative as Sellers’ Representative of such Seller. The Sellers’ Representative shall have full power act for the Sellers on all of the matters set forth in this Agreement and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and in the Escrow Agent are entitled and authorized to give notices only to manner the Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement believes to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in the best interest of the Sellers, provided that notice thereof is given promptly by but the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable responsible to either any such Seller for any action taken loss or omitted damage any such Seller may suffer by reason of the performance by the Sellers’ Representative hereunder of his, her or its duties under this Agreement and the Escrow Agreement, other than loss or damage arising from willful misconduct in the performance of such duties. Each Seller hereby expressly acknowledges and agrees that the Sellers’ Representative is authorized to act on behalf of such Seller notwithstanding any other document hereunderdispute or disagreement among such Sellers, and that any Person shall be entitled to rely on any and all action taken by the Sellers’ Representative under this Agreement without liability to, or obligation to inquire of, any of the Sellers. The Sellers’ Representative may be removed from time to time by the Sellers that held at least a majority of the voting membership interests of the Company immediately prior to the Closing. If the Sellers’ Representative is so removed, dies, becomes disabled, is dissolved or otherwise is unable to fulfill his, her or its responsibilities as agent of the Sellers, or there is a vacancy in connection therewiththe position of the Sellers’ Representative, except then the Sellers that held a majority of the voting membership interests of the Company immediately prior to the Closing shall, within ten (10) Business Days after such removal, death, disability or other cause of such vacancy, appoint a successor representative. Any successor shall become the Sellers’ Representative for purposes of the Escrow Agreement and this Agreement, and each successor Sellers’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Sellers’ Representative. No bond shall be required of the Sellers’ Representative, and the Sellers’ Representative shall not receive any compensation for his, her or its services. The Sellers do hereby agree to indemnify and hold the Sellers’ Representative harmless from and against any and all liability, loss, cost, damage or expense (including reasonable attorneys’ fees) reasonably incurred or suffered as a result of the performance of such Sellers’ Representative’s duties under this Agreement and the Escrow Agreement except for any such liability arising out of the willful misconduct of the Sellers’ Representative. The provisions of this Section shall be relieved binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each of the Sellers, and any Liability imposed by Law for actual fraudreferences in this Section to a Seller shall mean and include the successors to the rights of the Sellers hereunder, gross negligence whether pursuant to testamentary disposition, the laws of descent and distribution or willfulotherwise. All of the indemnities, immunities, releases and powers granted to the Sellers’ Representative under this Agreement shall survive the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Everbridge, Inc.)
Sellers’ Representative. (a) Each Seller By the execution and delivery of this Agreement, each of the Sellers and UGPE hereby irrevocably constitutes and appoints VPM ▇▇▇▇▇, as the true and lawful agent and attorney in fact (in such capacity, the “Sellers’ Representative” ”) of the Sellers and UGPE with full power of substitution to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s the name, place and stead, in any stead of the Sellers and all capacities, to do and perform every act and thing required or permitted to be done UGPE with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements transactions contemplated hereby and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time thereby as the Sellers’ Representative may deem appropriate, and to act on behalf of the Sellers and UGPE in any litigation or arbitration involving this Agreement or the Escrow Agreement, do or refrain from doing all such further acts and things, and execute all such documents as the Sellers’ Representative shall deem necessary or desirable appropriate in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including the power:
(i) to make or enter into any waiveract for the Sellers and UGPE with regard to matters pertaining to the determination of the Purchase Price, amendment, agreement, opinion, certificate or other document contemplated under the adjustment to the Purchase Price and pertaining to the indemnification referred to in this Agreement, including the power to settle any indemnity claim on behalf of the Sellers and UGPE and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Sellers’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement or any other Seller Ancillary Agreement;
(viiiiii) delivering all notices required to be delivered by either Sellerreceive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price or any amounts distributed under the Escrow Agreement;
(iv) to do or refrain from doing any further act or deed on behalf of the Sellers and UGPE that the Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Sellers and UGPE could do if personally present;
(v) to receive service of process in connection with any claims under this Agreement or the Escrow Agreement; and
(ixvi) receiving all to accept notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this accordance with Section 13.7(a) without the prior written consent of the Sellers’ Representative10.02.
(b) Each Seller grants unto said attorney-in-fact ▇▇▇▇▇ hereby agrees and agent full power and authority consents to do and perform each and every act and thing necessary or desirable to be done in connection with his appointment as the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative pursuant to this Section 8.07, effective as of the date of this Agreement. The appointment of the Sellers’ Representative shall be deemed coupled with an interest and shall be irrevocable, and the Purchaser and any other Person may lawfully conclusively and absolutely rely, without inquiry, upon any action or decision of the Sellers’ Representative in all matters referred to herein. All actions and decisions of Sellers’ Representative shall be binding and conclusive on each Seller and UGPE. All notices required to be made or delivered by the Purchaser to the Sellers or UGPE and shall be made to the Sellers’ Representative for the benefit of the Sellers and UGPE and shall discharge in full all notice requirements of the Purchaser to the Sellers and UGPE with respect thereto. The Sellers and UGPE hereby confirm all that the Sellers’ Representative shall do or cause to be done by virtue hereof. Without limiting of its appointment as the generality Sellers’ Representative of the foregoing, Sellers and UGPE. The Sellers’ Representative shall have full power act for the Sellers and authority to interpret UGPE on all of the terms matters set forth in this Agreement and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and in the manner the Sellers’ Representative believes to consent to any amendment or waiver hereof or thereof on behalf be in the best interest of all the Sellers and their successors. Buyers UGPE and consistent with the obligations under this Agreement and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, but the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable responsible to either the Sellers or UGPE for any loss or damages the Sellers or UGPE may suffer by the performance by the Sellers’ Representative of its duties under this Agreement or 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 Escrow Agreement.
(c) If any individual Seller for should die or become incapacitated, if any trust or estate should terminate or if any other similar event should occur, any action taken or omitted by the Sellers’ Representative hereunder pursuant to this Section 8.07 shall be valid as if such death or under 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 other document hereundertime on not less than five Business Days’ notice to the Sellers, or UGPE and the Parent. A vacancy in connection therewith, except that the position of Sellers’ Representative shall not be relieved filled by a Person determined by the holders of any Liability imposed by Law for actual fraud, gross negligence or willfula 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 For purposes of this Agreement and the Transaction Documents, each Seller irrevocably constitutes and appoints VPM as “hereby agrees to the appointment of the Sellers’ Representative” to act , and the Sellers’ Representative is hereby constituted and appointed as such Seller’s true the representative, agent, and lawful attorney-in-fact of each Seller, with full power and agent authority in the name of and authorizes Sellers’ Representative, acting for such and on behalf of each Seller and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done with respect to all matters arising taken by them under or contemplated by this Agreement, the Escrow Agreement Transaction Documents and any the other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderdocuments, under agreements, certificates, schedules or other instruments contemplated hereby or thereby, including the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each exercise of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under the power to (i) execute this Agreement, the Transaction Documents and any other documents, agreements, certificates, schedules or other instruments contemplated hereby or thereby, including all amendments to such documents, and take all actions required or permitted to be taken under such documents, (ii) authorize release from the Indemnification Escrow Funds, in satisfaction of indemnification or other claims contemplated by this Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
Transaction Document (i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant subject to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes terms of this Agreement, the Escrow Agreement and the Disbursing Agent Agreement), (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such indemnification or other Seller Ancillary Agreements claims, (iv) resolve any indemnification or other claims, (v) authorize the release of the Sellers’ Representative Fund Amount or otherwise control the Sellers’ Representative Fund Amount and engaging agents to do or refrain from doing all such further acts and representatives things, (including accountants vi) receive and legal counsel) forward notices and communications pursuant to assist in connection herewith this Agreement and therewith;
any Transaction Document and (vii) taking any and take all action on behalf actions necessary in the judgment of Sellers from time to time as the Sellers’ Representative may deem necessary or desirable to make or enter into any waiverfor the accomplishment of the foregoing and all of the other terms, amendment, agreement, opinion, certificate or other document contemplated under conditions and limitations of this Agreement, the Escrow Agreement or Transaction Documents and any other Seller Ancillary Agreement;documents, agreements, certificates, schedules or other instruments contemplated hereby or thereby.
(viiia) delivering all notices Sellers’ Representative ▇▇▇▇▇▇ accepts its appointment as the representative of each Seller as contemplated by this Section 7.10. Sellers’ Representative is hereby authorized by each Seller to act on such ▇▇▇▇▇▇’s behalf as required hereunder and under the Transaction Documents. Each Seller hereby agrees to be delivered bound by either Seller; and
(ix) receiving all notices required actions taken and documents executed by Sellers’ Representative in connection with is Agreement, the Transaction Documents and any other documents, agreements, certificates, schedules or other instruments contemplated hereby or thereby, including this Section 7.10. Each Purchaser Indemnified Party will be entitled to be delivered to either Seller. No Seller may take rely on any action or decision of Sellers’ Representative as the full and final decision of the actions set forth Sellers and will be fully protected and indemnified for its reliance thereof. Each Seller shall release and discharge the Purchaser Indemnified Parties from and against any Loss or Liability arising out of or in paragraphs (i) through (ix) connection with any act, omission or decision of this Section 13.7(a) without the prior written consent of the Sellers’ Representative or Sellers’ Representative’s failure to distribute any amounts received, directly or indirectly, by or on behalf of Sellers’ Representative, on behalf of, or for further distribution to, any Seller.
(b) Each Seller grants unto said attorney-in-fact At the Closing, the Sellers acknowledge and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with agree that the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Purchaser will deliver the Sellers’ Representative may lawfully do or cause Fund Amount to a bank account designated by the Sellers’ Representative In accordance with Section 2.3(d), which will be done controlled by virtue hereofthe Sellers’ Representative and used solely to pay the costs and expenses, if any, incurred by the Sellers’ Representative in the performance of its obligations as the Sellers’ Representative hereunder. Without limiting At such time as the generality of Sellers’ Representative deems reasonably appropriate, the foregoing, Sellers’ Representative shall have full power and authority distribute to interpret all the terms and provisions Sellers in accordance with the Distribution Schedule the remaining portion of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this AgreementFund Amount, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerif any.
(c) The grant Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of authority provided for a majority in this Section 13.7 interest of the Sellers’ according to each Seller’s Pro Rata Share (i) is coupled with an interest and is being grantedthe “Majority Holders”); provided, however, in part, as an inducement to Buyers to enter into this Agreement and no event shall the Sellers’ Representative resign or be irrevocable and survive removed without the Majority Holders having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of the Sellers’ Representative. In the event of the death, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and shall be binding on any successor theretothe Sellers’ Representative, and (ii) shall survive any distribution from the Escrow Agent.
(d) a new Sellers’ Representative shall not have be appointed by reason the vote or written consent of this Agreement the Majority Holders. Notice of such vote or a fiduciary relationship in respect copy of either Seller. the written consent appointing such new Sellers’ Representative shall not be liable sent to either Seller for any action taken the Purchaser, such appointment to be effective upon the later of the date indicated in such consent or omitted the date such notice is received by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulthe Purchaser.
Appears in 1 contract
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints VPM ▇▇. ▇▇▇▇▇ ▇. Gupta as “Sellers’ Representative” to act as such Seller’s his, her or its true and lawful agent and attorney-in-fact and agent and authorizes (the "Sellers’ ' Representative"), acting for such Seller and with full power of substitution to act in such Seller’s 's name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead with respect to all matters arising under transactions contemplated by and all terms and provisions of this Agreement and the Escrow Agreement, the Escrow Agreement and to act on such Seller's behalf in any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderdispute, under the Escrow Agreement litigation or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with arbitration involving this Agreement or the Escrow Agreement, and to 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 applicablefully 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) participating to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Seller which the Sellers' Representative deems necessary or appropriate in connection with the adjustment, objection, resolution and other processes or procedures pursuant to consummation of the transactions contemplated by this Agreement or either Seller Ancillary and the Escrow Agreement, including pursuant to Articles III or XI;; and
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions to receive on behalf of, and to distribute (after payment of any and all unpaid expenses chargeable to Sellers pursuant to Article XI;
(iv) initiating or taking any action in connection with respect to any suit, action or proceeding arising out of or related to the transactions contemplated by this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Escrow Agreement), all amounts payable to such Seller Ancillary Agreements under the terms of this Agreement and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact acknowledges and agent full power agrees that the Shares set forth opposite such Seller's name on Exhibit A is true and authority to do correct. Each Seller further agrees that the calculation of the Buyer Shares, if applicable, and perform each and every act and thing necessary or desirable the Common Merger Consideration to be done in connection with the matters described above, as fully to all intents and purposes as received by such Seller might or could do hereunder (as determined in personaccordance with Section 1.1 and Section 1.8(b)), hereby ratifying 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 confirming all that Sellers’ Representative may lawfully do or cause the consideration to be done received by virtue hereof. Without limiting it hereunder (as determined in accordance with Section 1.1 and Section 1.8(a)), represents the generality full amount to which RBC is entitled in respect of the foregoing, Sellers’ Representative shall have full power its Preferred Stock (and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers accrued but unpaid dividends thereon) and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerRBC Warrant.
(c) The grant appointment of authority provided for in this Section 13.7 (i) is the Sellers' Representative shall be deemed coupled with an interest and is being grantedshall be irrevocable, and Buyer, its affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Sellers' Representative on behalf of Sellers in part, as an inducement all matters relating to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy Escrow Agreement. All notices delivered by Buyer or liquidation of either Seller and shall be binding on any successor thereto, and the Company (iifollowing the Closing) to the Sellers' Representative (whether pursuant to this Agreement or otherwise) shall survive any distribution from constitute notice to Sellers. The Sellers' Representative shall act for Sellers on all of the matters set forth in this Agreement and the Escrow AgentAgreement in the manner the Sellers' Representative believes to be in the best interest of and equitable to Sellers and consistent with its obligations under this Agreement, but the Sellers' Representative shall not be responsible to Sellers 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 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 Escrow 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 by reason the right to object, dissent, protest or otherwise contest the same.
(g) The provisions of this Agreement a fiduciary relationship in respect Section 1.15 are independent and severable, shall constitute an irrevocable power of either 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. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” The Sellers hereby designate ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to act as such Sellers’ Representative hereunder and serve as each Seller’s true and lawful attorney-in-fact and agent in connection with the consummation of the Transactions and authorizes Sellers’ Representativethe performance of all obligations hereunder. This power is irrevocable and coupled with an interest and shall not be affected by the death, acting for such Seller and in such incapacity, illness, dissolution or other inability to act of any Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take may execute any and all actions which it believes are necessary instruments or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and documents on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment and do any and all other acts or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving things on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow AgreementSellers, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as which Sellers’ Representative may deem necessary or desirable advisable, or which may be required pursuant to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereofotherwise. Without limiting the generality of the foregoing, Sellers’ Representative shall have the full power and exclusive authority to interpret all (a) agree with Buyer with respect to any matter or thing required or deemed necessary by Sellers’ Representative in connection with the terms and provisions of this AgreementAgreement calling for the agreement of any or all Sellers, the Escrow Agreement give and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof receive notices on behalf of any or all Sellers, and act on behalf of Sellers in connection with any matter as to which any or all Sellers are or may be obligated under this Agreement or any document executed in conjunction herewith, all in the absolute discretion of Sellers’ Representative, (b) in general, do all things and their successors. Buyers perform all acts, including without limitation executing and the Escrow Agent are entitled delivering all agreements, certificates, receipts, consents, elections, instructions, and authorized to give notices only to other instruments or documents contemplated by, or deemed by Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given necessary or advisable in connection with, this Agreement on behalf of the Sellers and the Companies, (c) take all actions necessary or desirable in connection with the defense or settlement of any indemnification claims pursuant to either SellerArticle VI and performance of obligations under Article II, (d) take all actions and make all decisions regarding the allocation and/or pro-ration of such items as proceeds, expense items, taxes, escrow amounts, indemnification expenses or liabilities and other similar types of items, and (e) take all actions necessary with respect to the payment of fees owed to accountants and attorneys in connection with the Transactions. A successor Sellers shall PURCHASE AND SALE AGREEMENT 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 binding upon all Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. Sellers’ Representative may be chosen by a majority in interest of Sellerscommunicate with any Seller or any other Person concerning its responsibilities hereunder, provided that notice thereof but it is given promptly by the successor not required to do so. Sellers’ Representative has a duty to Buyers and serve in good faith the Escrow Agent and to each Seller.
(c) The grant interests of authority provided for Sellers in the performance of its designated role under this Section 13.7 (i) is coupled with an interest and is being grantedAgreement, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) but Sellers’ Representative shall not have by reason of this Agreement a no financial liability, fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable or similar duties, or other responsibility whatsoever to either Seller for any 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, defend 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, other than for harm directly caused by an act of willful misconduct by Sellers’ Representative. Seller’s Representative hereunder or under any other document hereundermay retain in his sole discretion, or in connection therewithup to $500,000 from the Purchase Price as a fund for the payment of expenses payable by Sellers pursuant to the provisions hereof, except that which shall be deducted from each Seller’s Pro Rata Share. Sellers’ Representative may resign at any time by notifying Buyer and Sellers in writing and the Sellers shall not be relieved entitled to appoint a successor Sellers’ Representative. By written notice to the Buyer, the Sellers holding more than 50% of any Liability imposed by Law for actual fraud, gross negligence or willfulthe proceeds to be distributed pursuant to this Agreement may appoint a different Sellers’ Representative from time to time.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Basic Energy Services Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes Effective upon and appoints VPM as “by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger and by virtue of the cancellation of the Vested Options in exchange for the consideration provided for in Section 2.05, and without any further act of any of the Sellers, the Sellers’ Representative” to act Representative will be hereby appointed as such Seller’s true the representative of the Sellers and lawful as the attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers such Seller for purposes of this Agreement and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing will be empowered to take such funds actions contemplated to be taken by the Sellers’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Sellers as it may deem necessary or appropriate in accordance connection with or to consummate any of the Contemplated Transactions, including: (i) taking all actions and making all filings on behalf of such Sellers with any Governmental Authority or other Person necessary to effect the consummation of the Contemplated Transactions; (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Sellers; (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided, however, that any amendment that will adversely and disproportionately affect the rights or obligations of any Seller as compared to other Sellers will require the prior written consent of such Seller); and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement, as applicable;. The Sellers’ Representative hereby accepts such appointment.
(iib) participating Subject to the proviso in Section 10.10(a)(iii) above, a decision, act, consent or instruction of the adjustmentSellers’ Representative hereunder will constitute a decision, objectionact, resolution and other processes consent or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf instruction of any and all Sellers pursuant to Article XI;
(iv) initiating and will be final, binding and conclusive upon each of such Sellers, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or taking instruction of the Sellers’ Representative as being the decision, act, consent or instruction of each and every such Seller. The Escrow Agent and Buyer will be relieved from any action with respect liability to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or Person for any other Seller Ancillary Agreement acts done by them in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary such decision, act, consent or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent instruction of the Sellers’ Representative.
(bc) Each Seller grants unto said attorney-in-fact The Sellers’ Representative will have the right to recover, at its sole discretion, from the Sellers’ Representative Fund Property and agent full power and authority to do and perform each and every act and thing necessary or desirable from any portion of the funds in the Escrow Account to be done distributed to the Sellers pursuant to Section 2.12(f)(iii), prior to any distribution to the Sellers: (i) the Sellers’ Representative’s reasonable out-of-pocket expenses (including fees and charges of counsel, accountants or other agents) incurred in connection with serving in that capacity; and (ii) any amounts to which it is entitled pursuant to the matters described aboveindemnification provision in Section 10.10(e) (each item in clauses (i) and (ii) of this Section 10.10(c) referred to as a “Charge,” and collectively the “Charges”). The Sellers’ Representative will hold the Sellers’ Representative Fund Property on behalf of the Sellers as an agent of the Sellers. Any amounts to be released to the Sellers from the Sellers’ Representative Fund Property will be released, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause direct, by (A) depositing with the Paying Agent each Seller’s Pro Rata Portion of such amount to be done by virtue hereofreleased (less any Withholding Amount for each Optionholder), which Buyer or the Surviving Corporation will cause the Paying Agent to pay to each such Seller (less any Withholding Amount for each Optionholder) and (B) depositing with the Surviving Corporation the applicable Withholding Amount with respect to the Optionholders, which the Surviving Corporation shall promptly remit to the applicable Tax authorities. Without limiting In no event shall Buyer be responsible for determining the generality of amount of, or the foregoingappropriate allocation and disbursement of, any amounts to be released to Sellers from the Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretoFund Property, and (ii) Buyer shall survive not have any distribution from the Escrow Agentliability with respect thereto.
(d) The Sellers’ Representative shall not have will incur no liability with respect to any action taken or suffered by reason of this Agreement a fiduciary relationship it in respect of either Seller. reliance upon any notice, direction, instruction, consent, statement or other document believed by such Sellers’ Representative shall to be genuine and to have been signed by the proper person (and the Sellers’ Representative will have no responsibility to determine the authenticity thereof), nor for any other action or inaction. In all questions arising under this Agreement or the Escrow Agreement, the Sellers’ Representative may rely on the advice of outside counsel, and the Sellers’ Representative will not be liable to either any Seller for any action taken anything done, omitted or omitted suffered in good faith by the Sellers’ Representative hereunder based on such advice.
(e) The Sellers will severally (each based on and limited to its Pro Rata Portion) but not jointly indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any loss, liability or under any other document hereunderexpense incurred, on the part of the Sellers’ Representative and arising out of or in connection therewithwith the acceptance or administration of the Sellers’ Representative’s duties hereunder, except that including the reasonable fees and expenses of any legal counsel or other agents retained by the Sellers’ Representative. No Seller will be liable under this Section 10.10(e) for any amount other than such Seller’s pro rata share of the Sellers’ Representative shall Fund Property and funds from the Escrow Account to be distributed pursuant to Section 2.12(f)(iii), which will be the exclusive remedy for the Sellers’ Representative under this Section 10.10(e).
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of 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 a majority-in-interest of Sellers must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be relieved effective upon the later of any Liability imposed the date indicated in the consent or the date such consent is received by Law for actual fraudBuyer and, gross negligence if applicable, the Escrow Agent. For the purposes of this Section 10.10, a “majority-in-interest of the Sellers” means Sellers representing in the aggregate over fifty percent of the percentage interests in the Sellers’ Representative Fund Property available to satisfy Charges.
(g) In the event that the Sellers’ Representative becomes unable or willfulunwilling to continue in its capacity as Sellers’ Representative, or if the Sellers’ Representative resigns as a 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 Buyer and, if applicable, the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Greif Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes In order to efficiently administer the activities of the parties under this Agreement on and appoints VPM after the Closing Date, the Sellers hereby designate M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as their representative (the “Sellers’ Representative” ”) and hereby authorize the Sellers’ Representative (i) to act take all actions necessary in connection with the defense and/or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article IX hereof; (ii) to give and receive all notices required to be given under this Agreement and under any other documents or agreements executed in connection with this Agreement; (iii) to object to, or authorize delivery to the Buyer of all or any portion of the Revenue Milestone Payment or Deferred Payment provided for in Section 1.3 in satisfaction of Claims of the Buyer, to negotiate and enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such Claims; (iv) to provide instructions to the Buyer for disbursement to the Sellers in accordance with this Agreement of the Revenue Milestone Payment and the Deferred Payment; and (v) to take any and all additional actions as is necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing or as contemplated to be taken by or on behalf of the Sellers by the terms of this Agreement and any other documents in connection herewith.
(b) In the event that the Sellers’ Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such Seller’s true position, N▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be deemed to be the Sellers’ Representative for purposes of this Agreement. In the event that the alternate Sellers’ Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Sellers shall appoint a substitute Sellers’ Representative and lawful attorney-in-fact and agent and authorizes shall in writing inform the Buyer.
(c) No bond shall be required of the Sellers’ Representative, acting and the Sellers’ Representative shall receive no compensation for such Seller and in such Seller’s name, place and stead, his or her services. Notices or communications to or from the Sellers’ Representative for all purposes under this Agreement or in any and all capacities, other Document shall constitute notice to do and perform every act and thing required or permitted to be done with respect to all matters arising under from each of the Sellers.
(d) By their execution of this Agreement, the Escrow Sellers acknowledge and agree that:
(i) all decisions and actions by the Sellers’ Representative, including, without limitation, any agreement between the Sellers’ Representative and the Buyer relating to the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Section 9 hereof, shall be binding upon all of the Sellers, and no Seller shall have (A) the right to object, dissent, protest or otherwise contest the same or (B) any cause of action against the Sellers’ Representative for any action taken, decision made or instruction given by the Sellers’ Representative under this Agreement while acting in good faith, except for intentional fraud or willful breach of this Agreement by the Sellers’ Representative;
(ii) the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers’ Representative as to the settlement of any claims for indemnification by the Buyer pursuant to Section 9 hereof and all other Seller Ancillary Agreement. All actions taken by the Sellers’ Representative hereunder, under and no Seller shall have any cause of action against the Escrow Agreement Buyer for any action taken by Buyer in reliance upon the instructions or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each decisions of them. the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XIRepresentative;
(iii) initiatingthe provisions of this Section 10.16 are independent and severable, consenting to, compromising irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or settling all indemnity claims or obligations or taking remedies that any other actions on behalf of any and all Sellers pursuant to Article XISeller may have in connection with the transactions contemplated by this Agreement;
(iv) initiating the provisions of this Section 10.16 shall be binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement to a Seller or taking any action the Sellers shall mean and include the successors to Seller’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(v) the Sellers’ Representative will have no liability to the Sellers with respect to actions taken or omitted to be taken in good faith in his capacity as the Sellers’ Representative, except with respect to any suitliability resulting directly from the Sellers’ Representative’s intentional fraud or willful misconduct. Each Seller agrees to severally, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement pro rata in accordance with its terms;
(vi) taking each Seller’s ownership of the Shares on the date hereof, and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any and all actions on behalf of Sellers from time to time as (A) reasonable expenses incurred by the Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary with the performance or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent administration of the Sellers’ Representative.
’s duties hereunder (bthe “Expenses”), (B) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done reasonable legal fees incurred by the Sellers’ Representative in connection with the matters described aboveperformance or administration of the Sellers’ Representative’s duties hereunder (collectively, as fully “Legal Fees”), which Legal Fees are hereby authorized by the Sellers, and (C) any damages or expenses (“Damages”) asserted against, resulting to, or imposed upon, or incurred or suffered by the Sellers’ Representative without intentional fraud or willful misconduct on the part of the Sellers’ Representative, and arising out of or in connection with the acceptance, performance or administration by Sellers’ Representative’s duties hereunder. In the event that the Sellers’ Representative is entitled to all intents and purposes as such Seller might or could do in personindemnification for Expenses, hereby ratifying and confirming all that Legal Fees and/or Damages at a time when funds are to be disbursed from the Escrow Fund to the Sellers, the Sellers’ Representative may lawfully do or cause the Escrow Agent to be done by virtue hereof. Without limiting pay to the generality of the foregoing, Sellers’ Representative shall have full power and authority out of the amount otherwise to interpret all be paid to the terms and provisions Sellers an amount equal to such Expenses, Legal Fees and/or Damages.
(e) In connection with the cancellation of this Agreementtheir Outstanding Securities Rights, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and Optionees will also appoint the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and act on their behalf on terms substantially identical to the Escrow Agent and to each Seller.
(c) The grant foregoing provisions of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent10.16.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Upon and by virtue of the Company Stockholder Approval, each holder of Company Common Stock, Company Preferred Stock, In-the-Money Warrants and Common Stock Allocation Participant (collectively, the “Selling Stockholders”) collectively and irrevocably constitutes constitute and appoints VPM as “Sellers’ Representative” appoint Sellers Representative from and after the date hereof, to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in do any and all capacities, to do things and perform every act execute any and thing all documents that Sellers Representative determines are required or permitted to be done taken by Sellers Representative under this Agreement and the agreements ancillary hereto, including without limitation with respect to all matters arising any Parent Indemnified Claims (including the settlement thereof) and with respect to performing the duties or exercising the rights granted to Sellers Representative hereunder and the under this Agreementthe agreements ancillary hereto, which shall include the power and authority to: (i) give and receive notices and communications to or from Parent (on behalf of itself or any other Parent Indemnified Party) and/or the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under Agent relating to this Agreement, the Escrow Agreement or any of the Transactions and other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
matters contemplated hereby or thereby (i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant except to the Escrow Agreement and distributing such funds in accordance with extent that this Agreement or the Escrow Agreement, as applicable;
Agreement expressly contemplates that any such notice or communication shall be given or received by the Selling Stockholders individually); (ii) participating authorize deliveries to Parent from the Escrow Account in the adjustment, objection, resolution and satisfaction of claims asserted by Parent (on behalf of itself or any other processes or procedures pursuant to this Agreement or either Seller Ancillary AgreementParent Indemnified Party, including pursuant by not objecting to Articles III or XI;
claims thereto); (iii) initiating, consenting object to any Parent Indemnification Claims; (iv) consent or agree to, compromising negotiate, enter into settlements and compromises of, and agree to arbitration and comply with Orders of courts and awards or settling arbitrators with respect to such Parent Indemnification Claims; and (v) take all indemnity claims actions necessary or obligations or taking any appropriate in the judgment of Sellers Representative for the accomplishment of, and to assert, enforce and protect the rights and interests of the Selling Stockholders with respect to, the foregoing, including to engage outside counsel, accountants and other actions advisors and incur such other expenses on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist Selling Stockholders in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, with the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeforegoing.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority Parent shall have the right to do and perform each and every act and thing necessary rely upon all actions taken or desirable omitted to be done in connection with the matters described above, as fully taken by Sellers Representative pursuant to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, all of which actions or omissions shall be legally binding upon the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerSelling Stockholders.
(c) The grant of authority provided for in this Section 13.7 herein (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, Selling Stockholder and (ii) shall survive the consummation of the Merger, and any distribution action taken by Sellers Representative pursuant to the authority granted in this Agreement shall be effective and binding on each Selling Stockholder notwithstanding any contrary action of or direction from the Escrow Agentsuch Selling Stockholder, except for actions or omissions of Sellers Representative constituting willful misconduct.
(d) Sellers’ Sellers Representative represents and warrants that it is a limited liability company, duly organized, validly existing and in good standing under the Laws of Colorado, and it has the requisite limited liability company power and authority, and has taken all limited liability company action necessary or required, to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Sellers Representative and, assuming that this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of Sellers Representative, subject to the Laws of agency.
(e) The Sellers Representative shall not have by reason at all times act in its capacity as Sellers Representative in a manner that the Sellers Representative believes to be in the best interest of this Agreement a fiduciary relationship in respect of either Sellerthe Selling Stockholders. Sellers’ The Sellers Representative shall not be liable to either Seller any Selling Stockholder for any action taken act done or omitted by Sellers’ hereunder as Sellers Representative hereunder while acting in good faith and absent its gross negligence or under bad faith. The Selling Stockholders, severally and not jointly (based on each Selling Stockholder’s Pro Rata Portion compared to the aggregate of the Pro Rata Portions of all Selling Stockholders), shall indemnify and defend the Sellers Representative and hold the Sellers Representative harmless from and against any other 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 hereunderlocation, duplication and shipment) (collectively, the “Representative Losses”) arising out of or in connection therewithwith the Sellers Representative’s execution and performance of this Agreement and any agreements ancillary hereto, except including the Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that Sellers’ in the event that any such Representative shall not be relieved of any Liability imposed Loss is finally adjudicated to have been directly caused by Law for actual fraud, the gross negligence or willfulwillful misconduct of the Sellers Representative, the Sellers Representative will reimburse the Selling Stockholders 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 Selling Stockholders, any such Representative Losses may be recovered by the Sellers Representative from (i) the Expense Fund and (ii) the amounts in the Escrow Account at such time as remaining amounts would otherwise be distributable to the Selling Stockholders; provided, that while this section allows the Sellers Representative to be paid from the Expense Fund and the Escrow Account, this does not relieve the Selling Stockholders from their obligation to promptly pay (in accordance with the third sentence of this Section 9.14(e)) 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 Selling Stockholders or otherwise. The Selling Stockholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Sellers Representative or the termination of this Agreement.
(f) The Sellers Representative shall have reasonable access during normal business hours to information about the Parent and Surviving Corporation and the reasonable assistance of the Parent and Surviving Corporation’s officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Sellers Representative shall treat confidentially and not disclose any nonpublic information from or about the Parent, the Surviving Corporation or the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(g) Except as otherwise decided by the written consent of Selling Stockholders holding a majority of the Escrow Shares, as of immediately following the Effective Time, the Advisory Committee will have three (3) members and, in case of any resignation or vacancy for any other reason, the remaining members of the Advisory Committee will appoint any other Selling Stockholder to fill the vacancy on the Advisory Committee. The Advisory Committee may, via majority vote, direct Sellers Representative in respect of any post-Closing actions on behalf of the Selling Stockholders, subject to Sellers Representative’s right to act in accordance with this Agreement and to exclude from decisions any person that it determines in good faith to be conflicted. In the absence of timely directives, Sellers Representative may act as it believes to be in the best interests of the Selling Stockholders.
(h) The Advisory Committee will not disclose or use any information received from the Sellers Representative unless required by Law (after advance consultation with the Sellers Representative). In the event of any pending or Threatened action, claim, dispute or other Proceeding related to this Agreement, the Sellers Representative and the Advisory Committee intend to consult with each other and have a commonality of interest with respect thereto and agree that it is their intention and understanding that sharing of information will not waive or diminish the continued protection of the attorney-client privilege, the work product doctrine or any other applicable privilege or doctrine. The Sellers Representative may opt not to convey any information if the Sellers Representative in good faith determines that it could jeopardize the confidential treatment thereof.
(i) The Sellers Representative may resign upon thirty (30) day notice in the event of circumstances rendering it impracticable for Sellers Representative to continue to effectively serve, including amendments increasing Sellers Representative’s responsibilities without its consent or failure to pay amounts due to Sellers Representative. The rights and obligations of Sellers Representative pursuant to this Agreement, and the grant of authority to such Sellers Representative set forth in this Section 9.14 may be assigned from time to time or a vacancy in such position may be filled upon written consent of the Selling Stockholders receiving a majority-in-interest of the Merger Consideration; provided, however, that no such assignment shall be effective unless and until (i) evidence of the consent referred to in the immediately preceding sentence is provided to Parent and (ii) the assignee of such rights and obligations becomes a party to this Agreement by executing a joinder in a form reasonably acceptable to Parent. Upon any such assignment, the Person accepting and assuming the rights and obligations of Sellers Representative shall become, for all purposes, Sellers Representative hereunder.
(j) Upon the Closing, the Company will wire to the Sellers Representative an amount of $75,000 (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Sellers Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Selling Stockholders will not receive any interest or earnings on the 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 Expense Fund other than as a result of its gross negligence or willful misconduct. The 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 event of bankruptcy. As soon as practicable following the completion of the Sellers Representative will deliver the balance of the Expense Fund to the Exchange Agent for further distribution to the Selling Stockholders. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Selling Stockholders at the time of Closing.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller In order to efficiently administer the Transaction, each Holder, by its execution of the Sellers' Representative Agreement, has irrevocably constitutes constituted and appoints VPM as appointed ▇▇▇▇ ▇▇▇▇▇▇▇ (the “Sellers’ ' Representative” to act ”), as such Seller’s true Holder's agent and lawful attorney-in-fact fact, with full power and agent and authorizes Sellers’ Representativeauthority to act, acting for such Seller and in such Seller’s name, place and steadincluding full power of substitution, in any his, her or its name and all capacitieson his, to do and perform every act and thing required her or permitted to be done its behalf with respect to all matters arising under from or in any way relating to this Agreement, the Escrow Agreement and any other Seller agreement entered into in connection with this Agreement (including the Ancillary Agreement. All actions taken Agreements) or the Transaction, including to do all things and to perform all acts required or deemed advisable, in its sole discretion, in connection with the Transaction as fully as such Holder could if then personally present and acting alone, including, without limitation (i) give and receive all communications and other deliveries to be given or received under this Agreement and the Ancillary Agreements by the Holders (for the avoidance of doubt, any communication or other delivery validly delivered to the Sellers’ ' Representative hereundershall be deemed to have been validly delivered to each Holder), under (ii) make all decisions relating to the Escrow Agreement adjustment of the Merger Consideration, Stockholders' Transaction Expenses or other amounts hereunder or under any other Seller Ancillary Agreement, (iii) take all action reasonably necessary in connection with the defense, payment or settlement of any claims for which any one or more of the Holders are obligated to indemnify, hold harmless or reimburse any Buyer Indemnified Parties pursuant to Article IX hereof, (iv) except as otherwise provided in Section 11.2, execute and deliver any consent under or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement and any such consent or waiver shall be binding upon all Sellers each and their respective heirsevery Holder, estates(v) except as otherwise provided in Section 11.1, executorsexecute and deliver, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellerseach Principal Stockholder, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant amendment to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of agreement entered into in connection with this Agreement and any such amendment shall be binding upon each and every Holder, (vi) take any and all Sellers pursuant additional action as is contemplated to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing be taken by the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ ' Representative may deem necessary or desirable to fulfill by the interests and purposes terms of this Agreement and/or the Sellers' Representative Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and take all action on behalf of Sellers from time to time as Sellers’ Representative may deem actions reasonably necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, appropriate in the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take judgment of the Sellers' Representative for the accomplishment of any of the actions set forth in paragraphs (i) through (ix) foregoing. This appointment of agency and this Section 13.7(a) without the prior written consent power of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) attorney is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy shall not be terminated by any Holder or liquidation by operation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentlaw.
(db) Any decision or action by the Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ ' Representative hereunder or under any other document hereunderAncillary Agreement made in accordance with this Section 10.4 and the Sellers' Representative Agreement shall constitute a decision or action of all the Holders and shall be final, binding and conclusive upon each of the Holders. None of the Holders shall have the right to object to, dissent from, protest or otherwise contest the same.
(c) Neither the Sellers' Representative nor any agent employed by it shall incur any Liability to any Holder by virtue of the failure or refusal of the Sellers' Representative for any reason to consummate the Transaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Holders, by virtue of their execution of the Sellers' Representative Agreement, jointly and severally, agree to indemnify the Sellers' Representative, his successors, assigns, agents, attorneys and affiliates (the “Sellers' Representative Parties”) and to hold the Sellers' Representative Parties harmless against any and all losses, Liabilities or expenses incurred without bad faith on the part of the Sellers' Representative and arising out of or in connection therewithwith his duties as Sellers' Representative, except that including the reasonable costs and expenses incurred by the Sellers’ ' Representative in defending against any claim or Liability in connection herewith.
(d) Contemporaneous with the execution and delivery hereof, the Sellers' Representative and each of the Holders shall execute and deliver an agreement in the form of the attached Exhibit E (the “Sellers' Representative Agreement”), pursuant to which the Sellers' Representative shall not be relieved agree to perform the obligations of any Liability imposed by Law for actual fraudthe Sellers' Representative set forth herein and therein. In the event the provisions contained in this Section 10.4 conflict with or are otherwise inconsistent with the terms of the Sellers' Representative Agreement, gross negligence or willfulthe terms of this Section 10.4 shall control.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act Representative as such Seller’s true and lawful representative, attorney-in-fact and agent agent, with full power of substitution (and authorizes Sellers’ Representative, acting for such Seller appointment is coupled with an interest and is irrevocable) to act in such Seller’s the name, place and steadstead of such Seller, to act on behalf of such Seller in any amendment of or litigation or arbitration involving this Agreement, including defending, negotiating, settling or otherwise dealing with Claims under Sections 2 or 7, and all capacities, to do or refrain from doing all such further acts and perform every act things, and thing to execute all such documents, as 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 done given in connection with respect the consummation of the Transactions, including pursuant to this Agreement and the Escrow Agreement (it being understood that each Seller will be deemed to have executed and delivered any such documents which Sellers’ Representative agrees to execute);
(2) to give and receive all matters arising notices and communications to be given or received under this Agreement, the Escrow Agreement and the Transactions and to receive service of process in connection with any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreementindemnification notice, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf the Transactions, including service of Sellers, as fully as if Sellers were acting on their own behalf, including:process; and
(i3) receiving to take all actions that under this Agreement and the Estimated Closing Date Cash Payment Transactions may be taken by S▇▇▇▇▇▇ and to do or refrain from doing any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving further act or deed on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as that Sellers’ Representative may deem deems necessary or desirable appropriate in its sole discretion relating to fulfill the interests subject matter of this Agreement and purposes of 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 Seller for any act taken or omitted by it as permitted under this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements 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 engaging agents and representatives will not be liable in any way, in relying upon any written notice, demand, certificate or document that he in good faith believes to be genuine (including accountants and legal counsel) facsimiles thereof). As to assist any matters not expressly provided for in connection herewith and therewith;
(vii) taking this Agreement, Sellers’ Representative will not be required to exercise any and all discretion or take any action on behalf of Sellers from time to time as Sellers. Buyer may conclusively rely upon, without independent verification or investigation, all decisions made by Sellers’ Representative may deem necessary in connection with this Agreement, and will have no liability for any actions taken by Sellers’ Representative.
(c) Sellers agree, severally but not jointly, to indemnify Sellers’ Representative for, and to hold Sellers’ Representative harmless against, any loss, liability or desirable expense arising out of, relating to make or enter into resulting from any waiveraction taken or omitted to be taken without gross negligence, amendmentwillful misconduct or bad faith on the part of Sellers’ Representative, agreement, opinion, certificate or other document contemplated in connection with Sellers’ Representative’s carrying out its duties under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any and the Transactions, including costs and expenses of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the successfully defending Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection Representative against any Claim of liability with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that respect thereto. Sellers’ Representative may lawfully do consult with counsel, accountants or cause to be done by virtue hereof. Without limiting the generality experts of the foregoing, Sellers’ Representative shall its own choice and will have full power and authority to interpret all the terms complete authorization and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall will not be liable to either Seller for any action taken or omitted to be taken in good faith in accordance with the opinion of such counsel, accountants or experts.
(d) If T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ becomes unable to 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 hereunder or under any other document hereunder, or in connection therewith, except that will designate such successor.
(e) Sellers’ Representative shall not Representative’s reasonable out-of-pocket expenses will be relieved of any Liability imposed paid by Law for actual fraud, gross negligence or willfulS▇▇▇▇▇▇.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Appointment. The Sellers’ Representative” Representative shall have full power and authority on behalf of the Sellers to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and take all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising actions under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions agreement entered into or document delivered in connection with the transactions contemplated by this Agreement that are to be taken by the Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of themRepresentative. The Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers giving and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with notice or instruction permitted or required under this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to interpreting all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement authorizing payments to be made with respect hereto or thereto, conducting negotiations with Purchaser and its agents regarding such claims, dealing with Purchaser under this Agreement, taking any other Seller Ancillary Agreement and to consent to any amendment actions specified in or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, and engaging counsel, accountants or other representatives in connection with the Escrow Agreement foregoing matters.
(b) Authorization. Prior to the Closing, the Company, and after the Closing, the Sellers, hereby authorize the Sellers’ Representative to:
(i) receive all notices or any other Seller Ancillary Agreement documents given or to be given to either Seller. A successor the Sellers pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) engage counsel, accountants and other advisors, and incur other expenses in connection with this Agreement and the transactions contemplated hereby or thereby, as the Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by his sole discretion deem necessary or appropriate; and
(iii) take such action as the successor Sellers’ Representative to Buyers and may, in his sole discretion, deem necessary or appropriate in respect of: (A) waiving any inaccuracies in the Escrow Agent and to each Seller.
(c) The grant representations or warranties of authority provided for Purchaser contained in this Section 13.7 Agreement or in any document delivered by Purchaser pursuant hereto; (iB) is coupled with an interest and is being granted, in part, taking such other action as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Sellers’ Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out the responsibilities of this Agreement a fiduciary relationship in respect of either Seller. the Sellers’ Representative shall not be liable to either Seller for contemplated by this Agreement or document or agreement contemplated hereby, including any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved waiver of any Liability imposed by Law for actual fraud, gross negligence or willfulobligation of Purchaser.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Sellers hereby irrevocably constitutes make, constitute and appoints VPM as appoint F▇▇▇ ▇. Klipsch (the initial “Sellers’ ' Representative” to act ”) as such Seller’s their true and lawful attorney-in-fact on behalf of Sellers to: (i) receive notices and agent communications pursuant to this Agreement and authorizes the other Transaction Documents; (ii) administer this Agreement and the other Transaction Documents, including the resolution of any disputes or claims; (iii) make determinations to settle any dispute as to the calculation of the Purchase Price; (iv) resolve, settle or compromise claims for indemnification asserted against Sellers pursuant to Article 7; (v) assert claims for indemnification under Article 7 and resolve, settle or compromise any such claim; and (vi) take other action specifically authorized by this Agreement.
(b) If Sellers’ Representative' Representative is of the opinion that he requires further authorization or advice from Sellers on any matters concerning this Agreement, Sellers' Representative is entitled to seek such further authorization from Sellers prior to acting for on their behalf. In such event and on any other matter requiring or permitting Sellers to vote in this Section 4.6, each Seller will have a number of votes equal to the Shares owned by that Seller immediately prior to Closing and the authorization of a majority of such Shares will be binding on all Sellers and will constitute authorization by all Sellers.
(c) Parent and Buyer will be fully protected in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done dealing with Sellers' Representative with respect to all matters arising this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby and may rely upon the authority of Sellers' Representative to act as the agent of Sellers for the purposes set forth herein under this Agreement, the Escrow Agreement other Transaction Documents and any other Seller Ancillary Agreementthe transactions contemplated hereby and thereby. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf The appointment of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ ' Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, will be irrevocable by any Seller in part, as an inducement any manner or for any reason. This power of attorney will not be affected by the disability or incapacity of the principal pursuant to Buyers any applicable Legal Requirement. Sellers' Representative will have no individual liability to enter into Parent or Buyer under this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution arising from the Escrow Agenthis actions as Sellers' Representative.
(d) If at any time there is more than one Sellers’ ' Representative, any act of Sellers' Representative shall not have will require the act of a majority of Sellers' Representatives. Any Sellers' Representative may resign from his capacity as a Sellers' Representative at any time by reason of this Agreement written notice delivered to the other Sellers and to Parent and Buyer. If at any time there is no person acting as a fiduciary relationship in respect of either Seller. Sellers’ ' Representative shall not be liable to either Seller for any action taken or omitted by reason, Sellers will promptly designate a new Sellers’ ' Representative hereunder or under any other document hereunderand notify Parent and Buyer in writing of such determination. Following the time that Parent and Buyer are notified that there is no Sellers' Representative and until such time as a new Sellers' Representative is designated as provided herein and Parent and Buyer are so notified in writing, or Sellers will collectively act as Sellers' Representative, with decisions made in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulthe manner specified in Section 4.6(b).
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Letter of Transmittal shall provide that the Sellers’ Representative” to act as such Seller’s true Representative shall be the agent and lawful attorney-in-fact for each Seller with full powers and agent authority (including full power of substitution) to act on behalf of such Sellers regarding any matter relating to or under this Agreement and authorizes the Escrow Agreement, including for the purposes of (i) paying or accepting any funds due to or from Purchaser, the Merger Subs, the Surviving Merger Sub, the Surviving Company, Sellers or the Escrow Agent; (ii) making all determinations and taking all actions in connection with any action or payments contemplated by Sections 2.10 and 2.11 and Article XI; (iii) executing and delivering all agreements (including the Escrow Agreement), certificates, receipts, consents, elections, instructions and other documents (including any amendments thereto or waivers thereof) required or contemplated by, or deemed necessary or advisable by the Sellers’ Representative, acting for such Seller and Representative in such Seller’s name, place and stead, its sole discretion in any and all capacities, to do and perform every act and thing required or permitted to be done connection with respect to all matters arising under this Agreement, the Escrow Agreement and any the transactions contemplated hereby or thereby and (iv) taking all other Seller Ancillary Agreement. All actions taken things and to performing all other acts required or contemplated by, or deemed necessary or advisable by the Sellers’ Representative hereunderin its sole discretion in connection with, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary the transactions contemplated hereby or thereby. As the representative of Sellers under this Agreement and the Escrow Agreement, the Sellers’ Representative shall act as the agent for and on behalf of Sellers, as fully as if shall have authority to bind Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers accordance with this Agreement and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement Agreement, and distributing Purchaser, the Merger Subs and the Escrow Agent may rely on such funds appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser or the Escrow Agent. Purchaser and the Escrow Agent may conclusively rely upon, without independent verification or investigation, all decisions made by the Sellers’ Representative in accordance connection with this Agreement or the Escrow Agreement, as applicable;
(ii) participating , in the adjustment, objection, resolution writing and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered signed by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any an officer of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent general partner of the Sellers’ Representative. Each Letter of Transmittal shall provide that all of the immunities and powers granted to the Sellers’ Representative thereby shall survive the Closing Date and/or any termination of this Agreement or the Escrow Agreement.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, The Sellers’ Representative shall have full power and authority no liability to interpret all Purchaser or the terms and provisions of Escrow Agent for any default under this Agreement or the Escrow Agreement, as applicable, by any of ▇▇ ▇▇▇▇▇▇▇, Management Blocker or the Company. Except for intentional common law fraud or willful misconduct on its part, the Sellers’ Representative shall have no liability to any of ▇▇ ▇▇▇▇▇▇▇, Management Blocker, the Company or any Seller under this Agreement or the Escrow Agreement and for any other Seller Ancillary Agreement and to consent to any amendment action or waiver hereof or thereof omission by the Sellers’ Representative on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedAt the Closing, in part, as an inducement to Buyers to enter into this Agreement and the Sellers’ Representative Expense Amount shall be irrevocable paid to an account specified by the Sellers’ Representative (the “Sellers’ Representative Expense Fund”) to enable the Sellers’ Representative to satisfy its obligations hereunder and survive out of which the deathSellers’ Representative may cause to be paid, incompetencyor reimburse itself for the payment of, bankruptcy the Sellers’ Representative Expenses incurred by the Sellers’ Representative in the performance or liquidation discharge of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) its duties. The Sellers’ Representative shall have sole and exclusive authority to disburse and pay amounts placed into the Sellers’ Representative Expense Fund. Each Letter of Transmittal shall provide that, from time to time after the Closing Date, in the event that the Sellers’ Representative determines that any then-remaining balance of the Sellers’ Representative Expense Fund is not have sufficient to pay actual or anticipated Sellers’ Representative Expenses incurred by reason the Sellers’ Representative in the performance or discharge of this Agreement a fiduciary relationship its duties, each Seller shall be obligated, within ten (10) days after delivery of written notice from the Sellers’ Representative, to contribute to the Sellers’ Representative Expense Fund such Sellers’ pro rata portion (based on the consideration payable in respect the Mergers) of either Seller. the aggregate additional amount to be deposited in the Sellers’ Representative Expense Fund as the Sellers’ Representative determines is necessary and which amount shall be set forth in such written notice and, in addition, that the Sellers’ Representative shall not be liable entitled to either Seller for withhold funds from any action taken payment to the Seller’s hereunder or omitted by under the Escrow Agreement in the event that the Sellers’ Representative hereunder or under determines that any other document hereunder, or in connection therewith, except that then-remaining balance of the Sellers’ Representative shall Expense Fund may not be relieved sufficient to pay actual or anticipated Sellers’ Representative Expenses incurred by the Sellers’ Representative in the performance or discharge of any Liability imposed by Law for actual fraud, gross negligence or willfulits duties.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes Sellers and appoints VPM as “Beneficial Sellers hereby designate Sellers’ Representative” Representative to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in execute any and all capacities, to do and perform every act and thing required instruments or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving documents on behalf of Sellers any amounts disbursed pursuant and Beneficial Sellers, and to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of do any and all Sellers pursuant to Article XI;
(iv) initiating other acts or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions things on behalf of Sellers from time to time as and Beneficial Sellers, which Sellers’ Representative may deem necessary or desirable advisable, or which may be required pursuant to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done otherwise, in connection with the matters described aboveconsummation of the transactions contemplated hereby and the performance of all obligations hereunder before, as fully to all intents and purposes as such Seller might at or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereoffollowing the Closing. Without limiting the generality of the foregoing, Sellers’ Representative shall have the full power and exclusive authority to interpret all (a) agree with Buyer with respect to any matter or thing required or deemed necessary by Sellers’ Representative in connection with the terms and provisions of this AgreementAgreement calling for the agreement of Sellers or Beneficial Sellers, the Escrow Agreement give and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof receive notices on behalf of all Sellers and their successors. Buyers Beneficial Sellers, and act on behalf of Sellers and Beneficial Sellers in connection with any matter as to which Sellers or Beneficial Sellers are or may be obligated under this Agreement or the Escrow Agent are entitled Agreement, all in the absolute discretion of Sellers’ Representative, (b) in general, do all things and authorized to give notices only to 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 for any notice contemplated by to be necessary or advisable in connection with, this Agreement, and (c) take all actions necessary or desirable in connection with the Escrow Agreement defense or settlement of any indemnification claims pursuant to Article 9 or Article 10 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. Sellers and Beneficial 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 binding upon all Sellers and Beneficial Sellers, and no Seller Ancillary Agreement or Beneficial Seller shall have the right to be given to either Sellerobject, dissent, protest or otherwise contest the same. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellerscommunicate with any Seller or Beneficial Seller or any other Person concerning his responsibilities hereunder, provided that notice thereof but it is given promptly by the successor not required to do so. Sellers’ Representative has a duty to Buyers serve in good faith the interests of Sellers and the Escrow Agent Beneficial Sellers and to each Seller.
(c) The grant of authority provided for in perform its designated role under this Section 13.7 (i) is coupled with an interest and is being grantedAgreement, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) but Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable no financial liability whatsoever to either Seller for any 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 and Beneficial Sellers shall indemnify and hold harmless Sellers’ Representative hereunder against any loss, expense (including reasonable attorney’s fees) or under any other document hereunder, or in connection therewith, except that liability arising out of its service as Sellers’ Representative shall not be relieved under this Agreement, other than for harm directly caused by an act of willful misconduct. Sellers’ Representative may resign at any Liability imposed time by Law for actual fraudnotifying Buyer, gross negligence or willfulSellers and Beneficial Sellers in writing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ply Gem Holdings Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “The Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under by virtue of their execution of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellershereby irrevocably appoint RPalmer, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ ' Representative may deem necessary or desirable to fulfill the interests and for purposes of this Agreement, the Note Escrow Agreement and the other Seller Ancillary Agreements Indemnification Notes, and engaging agents and representatives (including accountants and legal counsel) consent to assist in connection herewith and therewith;
(vii) the taking by the Sellers' Representative of any and all action on behalf actions and the making of Sellers from time any decisions required or permitted to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated be taken by them under this Agreement, the Note Escrow Agreement or any other Seller Ancillary Agreement;
the Indemnification Notes (viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any including the exercise of the actions set forth in paragraphs power (i) through to authorize set off by Buyer of the principal amount of the Indemnification Notes in satisfaction of claims by Buyer, (ixii) 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, (iii) to resolve any claim made pursuant to this Section 13.7(aAgreement, and (iv) without take all actions necessary in the prior written consent judgment of the Sellers’ Representative' Representative for the accomplishment of the foregoing), provided that the Sellers' Representative shall (A) provide periodic notice to the Sellers regarding the status of the Indemnification Notes and (B) use reasonable efforts to inform the Sellers regarding any claims resulting in the reduction of the principal amount of the Indemnification Notes, or any set off by Buyer against the principal of the Indemnification Notes, in excess of $100,000. By its execution below, the Sellers' Representative hereby accepts its appointment as the Sellers' Representative for purposes of this Agreement, the Note Escrow Agreement and the Indemnification Notes. Buyer shall be entitled to deal exclusively with the Sellers' Representative on all matters relating to Section 1.3, 1.5(a), 1.6, 5.1(e), 5.5 and 5.11, Article VIII, the Note Escrow Agreement and the Indemnification Notes.
(b) Each Seller grants unto said attorney-in-fact The Sellers' Representative shall be authorized to take any action and agent full power to make and authority deliver any certificate, notice, consent or instrument required or permitted to do be made or delivered under this Agreement, the Note Escrow Agreement or the Indemnification Notes (an "Instrument") which the Sellers' Representative determines in his discretion to be necessary, appropriate or desirable, and, in connection therewith, to hire or retain, at the sole expense of the Sellers, such counsel, investment bankers, accountants, representatives and other professional advisors as he determines in his sole and absolute discretion to be necessary, advisable or appropriate in order to carry out and perform each his rights and every act and thing necessary or desirable to be done in connection with obligations hereunder. Any party receiving an Instrument from the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ ' Representative shall have full power the right to rely in good faith upon such certification, and authority to interpret all act in accordance with the terms and provisions Instrument without independent investigation.
(c) If the Sellers' Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Sellers, then the Sellers shall, within ten (10) days after such death or disability, appoint a successor representative by a vote of the beneficial holders of a majority of the principal amount of the Indemnification Notes. Any such successor shall become a "Sellers' Representative" for purposes of this Agreement, the Note Escrow Agreement and the Indemnification Notes. The Sellers' Representative may be replaced prior to the Closing Date by a vote of the holders of a majority of the outstanding Purchased Interests or after the Closing Date by the beneficial holders of a majority of the principal amount of the Indemnification Notes.
(d) The Sellers hereby forever release and discharge the Sellers' Representative, legal counsel and accountants for the Sellers' Representative (collectively, the "Released Party") of and from any other Seller Ancillary Agreement and to consent to all claims and demands of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, for damages actual and consequential, past, present and future, arising out of or in any amendment way connected with the actions of the Released Party so long as the Released Party is acting within his, her or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers its capacity and the Escrow Agent are entitled and authorized to give notices only to mandate of the role of Sellers’ ' Representative for any notice as contemplated by this Agreement, the Note Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerIndemnification Notes.
(ce) The grant To the extent permitted by law, each of authority provided for the Sellers, pro rata in accordance with such Seller's Indemnity Percentage, will indemnify and hold harmless the Released Party against any losses, claims, expense, cause of action, damages or liabilities (severally, but not jointly) to which the Released Party may become subject in connection with fulfilling the role of Sellers' Representative as contemplated by this Section 13.7 (i) is coupled with an interest and is being grantedAgreement, in part, as an inducement to Buyers to enter into this the Note Escrow Agreement and shall the Indemnification Notes; and each of the Sellers will reimburse any person intended to be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of indemnified pursuant to this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller section for any action taken legal or omitted other expenses as reasonably incurred by Sellers’ Representative hereunder or under any other document hereunder, or such person in connection therewithwith investigating or defending any such loss, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraudclaim, gross negligence damage, liability or willfulaction.
Appears in 1 contract
Sources: Stock Purchase Agreement (Education Management Corporation)
Sellers’ Representative. Each Selling Shareholder (aother than the Carlyle Funds) Each Seller irrevocably constitutes and hereby appoints VPM as “▇▇▇▇▇ ▇▇▇▇ ▇▇ (the "Sellers’ ' Representative” to act ") as such Seller’s true and lawful Selling Shareholders' attorney-in-fact and agent representative, (i) to do any and authorizes Sellers’ Representativeall things and to execute any and all documents or other papers, acting for in each such Seller and in such Seller’s Selling Shareholder's name, place and stead, in any way in which each such Selling Shareholder could do if personally present, in connection with this Agreement and the applicable Ancillary Documents and the transactions contemplated hereby and thereby, (ii) to amend, cancel or extend, or waive the terms of, this Agreement and any of the Ancillary Documents in a manner that would not disproportionately affect such Selling Shareholder as compared to the other Selling Shareholders, (iii) to act on behalf of such Selling Shareholder with respect to any claims (including the settlement thereof) made by Buyer or such Selling Shareholders for indemnification pursuant to Article X or any dispute arising under Section 2.5 in a manner that would not disproportionately affect such Selling Shareholder as compared to the other Selling Shareholders. The power of attorney granted hereby is coupled with an interest. In the event that the Sellers' Representative becomes unable or unwilling to continue in his or her capacity as the Sellers' Representative under this Agreement, the Selling Shareholders (other than the Carlyle Funds) shall promptly appoint a successor Sellers' Representative by written notice to Buyer, and the appointment of such successor Sellers' Representative shall become effective only upon Buyer's receipt of such written notice. Each Selling Shareholder (other than the Carlyle Funds) hereby agrees that any successor Sellers' Representative so selected by such Selling Shareholders shall be entitled to act as such under this Agreement on behalf of such Selling Shareholders. All references herein to the Sellers' Representative shall include any such successor Sellers' Representative. Except as otherwise expressly set forth herein, the Selling 16 <PAGE> Shareholders (other than the Carlyle Funds) hereby consent to the taking by the Sellers' Representative of any and all capacities, to do actions and perform every act and thing the making of any decisions required or permitted to be done with respect to all matters arising taken by such Selling Shareholders under this Agreement, . The Selling Shareholders (other than the Escrow Agreement and any other Seller Ancillary Agreement. All Carlyle Funds) shall be bound by all actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ ' Representative in his or her capacity as the Sellers' Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Share Purchase Agreement
Sellers’ Representative. (a) Each Upon receipt of the Seller irrevocably constitutes Approval and appoints VPM the execution of a Seller Joinder Agreement by each Seller, Donn ▇. ▇▇▇ ▇▇ hereby appointed and authorized as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes the Sellers’ Representative, acting for such to serve as the representative, agent and attorney in fact of each Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all the matters arising under expressly set forth in this Agreement, the Escrow Agreement and any other Seller the Ancillary Agreement. All actions taken Agreements to be performed by Sellers’ Representative. Sellers’ Representative hereunderhas 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 Ancillary Agreements, including the power and authority to (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 or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are deems to be necessary or appropriate desirable in the sole discretion of Sellers’ Representative; (ii) execute, deliver and perform his obligations under this 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 any other Seller Ancillary Agreement for and on behalf 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 fully 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 if Sellers were acting on their own behalfSellers’ Representative, including:
in his sole discretion, determines to be necessary or desirable; (iv) receiving collect and receive all moneys and other proceeds and property payable to Sellers’ Representative from the Estimated Closing Date Cash Payment Adjustment Escrow Amount, the PPP Loan Escrow Amount or any Earnout Payment otherwise as described herein (including any portion of the Final Adjustment Amount) or in each case any adjustments theretoAncillary Agreement, (vi) from Buyers give and receiving receive notices and communications on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance connection with this Agreement and the 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, such Claims, and (viii) take all other actions that are either (A) necessary or the Escrow Agreement, as applicable;
(ii) participating appropriate in the adjustment, objection, resolution and other processes judgment of Sellers’ Representative for the accomplishment of the foregoing or procedures pursuant to (B) specifically mandated by the terms of this Agreement or either Seller any Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of . Such agency may be changed by Sellers from time to time as Sellersupon not less than ten (10) days’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority notice to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described aboveBuyer; provided, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause not be removed unless a majority in interest of Sellers agree in writing to be done by virtue hereof. Without limiting such removal and to the generality identity of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Sellersubstituted agent. A successor to vacancy in the position of Sellers’ Representative may be chosen filled by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor . No bond will be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative will constitute notice to Buyers and the Escrow Agent and to each Seller.
(c) or from Sellers. The grant of authority provided for in this Section 13.7 (i) herein is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive survives the death, incompetency, bankruptcy or liquidation of either any Seller. All of the indemnities, immunities and powers granted to Sellers’ Representative under this Agreement will survive the Closing Date and any termination of this 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 paid by wire transfer of immediately available funds to the account provided by Sellers’ Representative. The Sellers’ Representative Holdback Amount shall constitute a non-exclusive source of reimbursement for any Sellers’ Representative Expenses. If any portion of the Sellers’ Representative Holdback Amount remains unused following the two-year anniversary of the Closing Date, and such amount is not then reasonably expected to be used for Sellers’ Representative Expenses, the remainder of the Sellers’ Representative Holdback Amount shall be binding on disbursed to the Sellers (in accordance with each Seller’s proportionate share of the Merger Consideration). Upon any successor thereto, and (ii) shall survive any distribution payment to Sellers of amounts from the Adjustment Escrow AgentAmount, the PPP Loan Escrow Amount and any portion of the Final Adjustment Amount (which, for the avoidance of doubt, would be paid to Sellers’ Representative (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 the Merger Consideration).
(c) Sellers acknowledge and agree that any payments made by Buyer, or any of its Affiliates, to Sellers’ Representative will constitute payment of amounts due (including the Merger Consideration) for such payment obligations of Buyer under the terms of this Agreement as though such payments were made directly to the applicable Seller. Sellers’ Representative will distribute promptly to the applicable Seller (in accordance with the terms of this Agreement) all such amounts received from Buyer under this Agreement. It shall be the sole and exclusive responsibility and obligation of Sellers’ Representative to make appropriate and proportional distribution of such payments to Sellers.
(d) A decision, 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 rely upon any such decision, act, consent or instruction of Sellers’ Representative shall not have as being the decision, act, consent or instruction of all Sellers. Buyer and its Affiliates are hereby relieved from any Liability to any Person for any acts done by reason them in accordance with such decision, act, consent or instruction of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulRepresentative.
Appears in 1 contract
Sellers’ Representative. By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Seller hereby authorizes, directs and irrevocably appoints (aand each other (1) Each Seller irrevocably constitutes Stockholder pursuant to the terms of such Stockholder’s Transmittal Letter and appoints VPM as “Sellers’ Representative” (2) Optionholder pursuant to the terms of such Optionholder’s Option Cancelation Agreement, shall authorize, direct and appoint) Shareholder Representative Services LLC to act as such Seller’s true its sole and lawful exclusive agent, attorney-in-fact and agent representative as of the Closing for all purposes in connection with this Agreement and the agreements ancillary hereto, and authorizes and directs the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in Representative to (A) take any and all capacitiesactions (including executing and delivering any documents, to do incurring any costs and perform every act expenses on behalf of the Sellers and thing making any and all determinations) which may be required or permitted by this Agreement to be done with respect taken by the Sellers, (B) exercise such other rights, power and authority, as are authorized, delegated and granted to all matters arising under the Sellers’ Representative pursuant to this Agreement, the Escrow Agreement Agreement, the Payments Agreement, any Transmittal Letter, or any other agreements ancillary hereto, and (C) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any other Seller Ancillary Agreement. All actions taken decision or determination made by the Sellers’ Representative hereunderconsistent therewith, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be absolutely and irrevocably binding upon all Sellers on each Seller, and their respective heirssuch Seller’s successors, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such holder’s capacity and ratified in writing by each all defense which may be available to such Seller to contest, negate or disaffirm the action of them. the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate taken in good faith under this Agreement, the Escrow Agreement or the Payments Agreement are waived. Each Seller agrees that the Sellers’ Representative shall not be liable for any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment actions taken or any Earnout Payment (including omitted to be taken under or in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance connection with this Agreement and any related agreements, or the Escrow Agreementtransactions contemplated hereby or thereby, as applicable;
except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct. The Sellers shall indemnify the Sellers’ Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (ii“Representative Losses”) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to in connection with this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) event that any such Representative Loss is finally adjudicated to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary have been caused by the gross negligence or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent willful misconduct of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with , the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative 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 lawfully do or cause to be done recovered by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power from (i) the funds in the Reserve Account and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and (ii) any other Seller Ancillary funds that become payable to the Sellers under this Agreement and at such time as such amounts would otherwise be distributable to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement; provided, that while the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest paid from the aforementioned sources of Sellersfunds, provided that notice thereof is given this does not relieve the Sellers from their obligation to promptly by pay such Representative Losses as they are suffered or incurred. In no event will the successor Sellers’ Representative be required to Buyers and advance its own funds on behalf of the Escrow Agent and to each Seller.
(c) The grant of authority provided for Sellers or otherwise. Notwithstanding anything in this Section 13.7 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 Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers’ Representative or the termination of this Agreement. The powers, immunities and rights to indemnification granted to the Sellers’ Representative hereunder: (iX) is are coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of either any Seller and shall be binding on any successor thereto, thereto and (iiY) shall survive the delivery of any distribution from assignment by any Seller of the whole or any fraction of his her or its interest in the Adjustment Escrow Agent.
(d) Amount. The Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for may resign at any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfultime.
Appears in 1 contract
Sources: Merger Agreement (Ceva Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes hereby authorizes and appoints VPM directs ▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s true its agent, proxy and lawful attorney-in-fact and agent and authorizes representative under this Agreement (the "Sellers’ ' Representative, acting for ") to take such Seller and in action on behalf of such Seller’s name, place and steadto exercise such rights, in any power and all capacitiesauthority, as are authorized, delegated and granted to do the Sellers' Representative on behalf of Sellers pursuant to this Agreement (including the right to receive notices and perform every act and thing required or permitted other documentation pursuant to be done with respect to all matters arising under this Agreement, the Escrow terms of the Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all on behalf of Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under the right to terminate this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers). By its execution hereof, as fully as if Sellers were acting on their own behalfeach Seller hereby authorizes, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers delegates and receiving on behalf of Sellers any amounts disbursed pursuant grants to the Escrow Agreement and distributing such funds in accordance with Sellers' Representative authority to take all actions that this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required explicitly provides are to be delivered taken by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ ' Representative.
(b) Each Seller grants unto said of the ▇▇▇▇▇ Stockholders and Third Party Stockholders hereby authorizes and directs ▇▇▇▇▇ as its agent, proxy and attorney-in-fact and agent full power and authority representative under this Agreement (the "Stockholder Representative") to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as take such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof 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). By its execution hereof, each ▇▇▇▇▇ Stockholder and Third Party Stockholder hereby authorizes, delegates and grants to the Stockholder Representative authority to take all Sellers and their successors. Buyers and the Escrow Agent actions that this Agreement explicitly provides are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly taken by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerStockholder Representative.
(c) The grant Each of authority provided for in the Management Stockholders hereby authorizes and directs ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as its agent, proxy and attorney-in-fact and representative under this Section 13.7 Agreement (ithe "Management Representative") is coupled with an interest to take such action on behalf of such Management Stockholders, and is being grantedto exercise such rights, in partpower and authority, as an inducement are authorized, delegated and granted to Buyers the Management Representative pursuant to enter into this Agreement and shall be irrevocable and survive (including the death, incompetency, bankruptcy or liquidation right to receive notices on behalf of either Seller and shall be binding on any successor theretothe Management Stockholders, and (ii) shall survive any distribution from to amend this Agreement on behalf of the Escrow AgentManagement 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 not have by reason of (i) be liable for any actions taken or omitted to be taken under or in connection with 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 fiduciary relationship 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. 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 settlement in respect of either 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 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 (ii) each Management Stockholder, jointly and severally, hereby agrees to defend, indemnify and hold harmless the Management 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 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 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.
(e) 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 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 Buyer 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, acting in such capacity, to act on such Seller's behalf. Sellers’ Representative Buyer Holdings and Buyer and their respective successors shall not be liable to either any Seller for any action actions taken or omitted by them in reliance upon any instructions, notices or other instruments delivered by the Sellers’ ' Representative, the Stockholder Representative hereunder or under any other document hereunderthe Management Representative, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulas the case may be.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and hereby appoints VPM Continental Materials Corp. as the “Sellers’ Sellers Representative” to act as such Seller’s true the agent of the Sellers with the full power (i) to resolve all questions, disputes, conflicts and lawful attorney-in-fact controversies concerning Losses, the Purchase Price Adjustment and agent and authorizes Sellers’ Representative, acting for such Seller and the allocation of the Purchase Price as provided in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, (ii) to execute and enter into, on behalf of the Sellers, the Escrow Agreement Agreement, and any other Seller Ancillary Agreement. All to take all actions taken by Sellers’ Representative hereunderthereunder for and on their behalf, including but not limited the authorization of payments of amounts held under the Escrow Agreement or in connection with Losses as provided herein and therein, (iii) to negotiate and/or settle all claims under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiatingto receive from the Buyer monies payable to the Sellers in accordance with the provisions of this Agreement and the Escrow Agreement, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing to otherwise take such actions (or refrain from taking actions) and performing execute such documents on the Sellers’ behalf in connection with this Agreement and the Escrow Agreement or any other Seller Ancillary Agreement Agreement, as the Sellers Representative, in accordance with its terms;
sole discretion, deems proper and (vi) taking any and to perform all actions on behalf of the functions of the Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of under this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Escrow Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers The Buyer and the Escrow Agent are entitled to rely on the acts and authorized agreements of the Sellers Representative as the acts and agreements of the Sellers. The Sellers Representative shall be entitled to give notices only retain counsel and to Sellers’ incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Sellers Representative for any notice contemplated deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement and the Escrow Agreement, and all such fees and expenses incurred by this the Sellers Representative shall be borne by each Seller. Subject to and in accordance with the provisions of the Escrow Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly fees and expenses incurred by the successor Sellers’ Sellers Representative pursuant to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement 7.01 shall be paid by the Sellers directly to Buyers to enter into this Agreement the Sellers Representative and shall not be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution paid from the Escrow AgentFund.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes The Sellers’ Representative, acting on the terms hereafter set out, shall act for the Sellers with respect to the calculation of the Purchase Price, with respect to the execution of all agreements and documents (including the Escrow Agreement and the Exchange Fund Agreement) and the making of all deliveries required to be made by the Sellers hereunder, with respect to the waiver of any condition under, and the decision to 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 with respect to any other decision or consent to be made by the Sellers hereunder, provided however that (i) the Sellers’ Representative shall not act for a particular Seller in respect of any matter relating to a claim for indemnification specific to a particular Seller only, and (ii) if the Management Representative has specific authority under Section 15.23 to act for the Management Sellers then the Sellers’ Representative shall have no authority to act for the Management Sellers in connection with such Seller’s namematter. For greater certainty, place the assumption by the Sellers’ Representative of the responsibilities set out in this Section 15.22 does not make any Seller liable for more than their respective Pro Rata Liability Share of any claim by the Buyer Indemnified Parties. In each such case in this Agreement, the Buyer shall be entitled to direct all communications through, and steadrely on decisions made by, in the Sellers’ Representative. With respect to all such matters, the Sellers’ Representative may (i) take any and all capacitiesactions (including without limitation executing and delivering any documents), to do incurring any costs and perform every act expenses for the account of the Sellers and thing make any and all determinations which may be required or permitted to be done with respect to all matters arising taken by the Sellers under this Agreement, including in connection with Sections 11 or 14 of this Agreement, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising dispute or settling all indemnity claims or obligations or taking refrain from disputing any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing claim made by the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated 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 Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeforegoing.
(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 be effective until all rights and obligations of the Sellers under this Agreement, have terminated, expired or 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 Sellers in acting or relying upon any written notice, direction, request, waiver, notice, consent, receipt or other paper or document which the Sellers’ Representative 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 liable to the Sellers or the Buyer for any error of 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 action taken, omitted or 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 and the transactions contemplated hereby, 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 grants unto said 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 agent full power of substitution, except to the extent expressly provided to the contrary herein, to act in the name, place and authority stead of such Seller with respect to do all powers and perform each rights in this Agreement (including without limitation to (i) amend or terminate this Agreement in accordance with this Agreement, (ii) receive or deliver any and every act all notices to be delivered to or by any of the Sellers hereunder, (iii) receive, hold and thing 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 desirable to be done appropriate in its sole discretion in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality consummation of the foregoing, Sellers’ Representative shall have full power and authority to interpret all transactions contemplated by the terms and provisions of this Agreement). Buyer and each of the Sellers hereby acknowledges that the Sellers’ Representative, with respect to the Escrow Agreement and any other Seller Ancillary Agreement and matters set out in this Section 15.22, will not be acting in such Person’s individual capacity pursuant to consent to any amendment or waiver hereof or thereof on behalf the terms of all Sellers and their successors. Buyers and this Agreement, but solely in its capacity as the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement(and accordingly, as a representative of the Escrow Agreement or any other Seller Ancillary Agreement to be given to either SellerSellers). A successor to Buyer and each of the Sellers hereby agrees that the Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall will not be liable to either Seller that party for any action taken or omitted by in good faith in its capacity as the Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulRepresentative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act Platte River Equity III, L.P. as such Seller’s true true, lawful and lawful sole agent and attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellerssuch Seller in all matters relating to or arising out of this Agreement and the Ancillary Agreements, as fully as if Sellers were acting on their own behalf, including:
including (i) receiving the Estimated Closing Date Cash Payment all demands and notices on or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant with respect to the Escrow such Seller under this Agreement and distributing such funds in accordance with this Agreement or the Escrow AgreementAncillary Agreements, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) refraining from taking any and all actions on behalf of Sellers from time to time action as Sellers’ Representative may deem necessary or desirable appropriate in its discretion relating to fulfill the interests and purposes subject matter of this Agreement and the Ancillary Agreements, (iii) executing and delivering the Lockup and Registration Rights Agreement, the Escrow Agreement and any other Ancillary Agreements, any amendment to this Agreement or such Ancillary Agreements, and all other instruments and documents of every kind incident to or otherwise relating to this Agreement and the other Seller Ancillary Agreements and engaging agents and representatives Agreements, (including accountants and legal counseliv) directing any payments due from Buyer authorizing the delivery to assist in connection herewith and therewith;
Buyer of all or any portion of the funds from the Escrow Account, (viiv) taking any and all action on behalf of Sellers from time to time or any individual Seller that may be necessary or desirable, as determined by Sellers’ Representative may deem necessary in its sole discretion, in connection with negotiating or desirable entering into settlements, resolutions and compromises with respect to make indemnification claims of the Buyer Indemnified Parties, (vi) accepting notices on behalf of Sellers or enter into any waiverindividual Seller in accordance with Section 13.7, amendment, agreement, opinion, certificate (vii) granting any consent or other document contemplated approval on behalf of Sellers or any individual Seller under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
, (viii) delivering all notices required to be delivered by either Seller; and
authorizing distribution of the Additional Real Property Purchase Price, (ix) receiving taking all notices required actions on behalf of each Seller pursuant to be delivered this Agreement and any Ancillary Agreement to either Seller. No which such Seller may take any is a party and (x) taking all actions necessary or appropriate in the judgment of Sellers’ Representative for the accomplishment of the actions set forth in paragraphs (i) through (ix) foregoing. Each Seller shall be fully bound by the acts, decisions and agreements of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact Representative taken and agent full power done pursuant to the authority herein granted, and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming confirms all that Sellers’ Representative may lawfully shall do or cause to be done by virtue hereofof its appointment as Sellers’ Representative. The appointment of Sellers’ Representative pursuant to this Section 12.1 (x) is coupled with an interest, shall be irrevocable and (to the maximum extent permitted by Law) shall survive the dissolution, termination, death, incompetency or bankruptcy of any Seller and shall be binding on such Seller’s beneficiaries, heirs, representatives and successors and (y) may be exercised by Sellers’ Representative by signing separately as Sellers’ Representative for each Seller or, after listing all Sellers executing an instrument, by signing as Sellers’ Representative for all of them. Buyer and all other Persons may conclusively and absolutely rely, without inquiry, upon any action of Sellers’ Representative in all matters referred to in this Agreement.
(b) Each Seller hereby agrees to indemnify and to save and hold harmless Sellers’ Representative from any liability incurred by Sellers’ Representative based upon or arising out of any act, whether of omission or commission, of Sellers’ Representative pursuant to the authority herein granted, other than acts, whether of omission or commission, of Sellers’ Representative that constitute gross negligence or willful misconduct in the exercise by Sellers’ Representative of the authority granted by this Section 12.1. 32 Sellers’ Representative shall be entitled to rely on the advice of counsel, 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.
(c) Sellers’ Representative, or any successor hereafter appointed, may resign and shall be discharged of his, her or its duties hereunder upon the appointment of a successor Sellers’ Representative, as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of Sellers’ Representative, a successor may be named by Sellers representing a majority of the Closing Percentages. Each such successor Sellers’ Representative shall have all the power, authority, rights and privileges hereby conferred upon the original Sellers’ Representative, and the term “Sellers’ Representative” as used herein shall be deemed to include any such successor Sellers’ Representative.
(d) In connection with the performance of its responsibilities as Sellers’ Representative under this Agreement, Sellers’ Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of Sellers (based on each Seller’s Closing Percentage), such attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, as Sellers’ Representative determines is necessary or desirable.
(e) Unless otherwise agreed in writing by each Seller, Sellers’ Representative shall not be entitled to any compensation for the performance of services under this Agreement, but shall be entitled, in accordance with the terms of this Agreement, to payment or reimbursement of all expenses incurred as Sellers’ Representative. 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 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. Buyer is hereby relieved from any Liability to any Person for any acts done or omissions by Buyer in accordance with such decision, act, consent or instruction of the Sellers’ Representative. Without limiting the generality of the foregoing, Buyer is entitled to rely, without inquiry, upon any document delivered by the Sellers’ Representative shall have full power as being genuine and authority to interpret all correct and having been duly signed or sent by the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerRepresentative.
(cf) The grant Without limiting the generality of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedthe foregoing, in part, as an inducement each Seller hereby agrees that Buyer shall have no responsibility to Buyers see to enter into the payment of any amounts due to a Seller under this Agreement and shall be irrevocable and survive to the deathappropriate Seller, incompetency, bankruptcy or liquidation of either Seller and shall be binding on its sole responsibility being to make any successor thereto, and (ii) shall survive any distribution from such payments to such accounts as are specified in writing by the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulRepresentative.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Hi-Crush Partners LP)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “The Sellers hereby appoint the Sellers’ Representative” to act Representative as such Seller’s true and lawful attorney-in-fact and agent and authorizes attorney in fact for and on behalf of the Sellers to (i) interpret the terms and provisions of this Agreement and the Ancillary Agreements (other than the Employment Agreement and the Put-Call Agreements), (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 Put-Call Agreements) and the consummation of the transactions contemplated hereby, (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 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 may be payable or distributable to any Sellers pursuant to the terms of this Agreement or any Ancillary Agreement (other than the Employment Agreement and the Put-Call Agreements) 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 liabilities incurred by the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and steadcapacity, in any and all capacities, to do and perform every act and thing required or permitted to be done connection with respect to all matters arising under this Agreement, the Escrow Agreement and any the Ancillary Agreements (other Seller Ancillary Agreement. All than the Employment Agreement and the Put-Call Agreements), and (viii) take all actions taken by necessary or appropriate in the judgment of the Sellers’ Representative hereunderon behalf of the Sellers in connection with this Agreement and the Ancillary Agreements (other than the Employment Agreement and the Put-Call Agreements).
(b) The Sellers’ Representative, under or any successor hereafter appointed, may resign at any time by written notice to the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers Buyer and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified the Sponsor. Any change in writing by each of them. the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant will become effective upon notice to the Escrow Agreement Buyer and distributing such funds the Sponsor in 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 or to the Escrow Agreement, as applicable;Sellers’ Representative will apply to any successor Sellers’ Representative.
(iic) participating in the adjustment, objection, resolution and other processes The Sellers’ Representative will not be liable for any act done or procedures pursuant to omitted under this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative while acting in good faith, 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 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 deem necessary be. In performing any of its duties under this Agreement or desirable to fulfill any Ancillary Agreements (other than the interests and purposes of this Agreement, the Escrow Employment Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Put-Call Agreements), the Sellers’ Representative will not be liable to the Sellers for any losses that any such Person may deem necessary incur as a result of any act, or desirable failure to make or enter into any waiveract, amendment, agreement, opinion, certificate or other document contemplated by the Sellers’ Representative under this Agreement, the Escrow Agreement or any Ancillary Agreements (other Seller Ancillary Agreement;
(viii) delivering than the Employment Agreement and the Put-Call Agreements), and the Sellers’ Representative will be indemnified and held harmless by the Sellers for all notices required losses, except to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any the extent that the actions or omissions of the actions set forth in paragraphs (i) through (ix) Sellers’ Representative constituted fraud, gross negligence or willful misconduct. The limitation of liability provisions of this Section 13.7(a11.3(c) without will survive the prior written consent termination of this Agreement and the resignation of the Sellers’ Representative.
(bd) Each Seller grants unto said attorney-in-fact The Buyer and agent full power the Sponsor shall be entitled to rely exclusively upon any notices and authority to do and perform each and every act and thing necessary or desirable to be done in connection with other acts of the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause relating to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power rights and authority to interpret all the terms obligations hereunder as being legally binding acts of each Seller individually and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellercollectively.
(ce) The grant of authority provided providing for in this Section 13.7 11.3 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either any Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow AgentClosing.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sources: Business Combination Agreement (dMY Technology Group, Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act the Sellers Representative as such Seller’s true representative, agent, proxy and lawful attorney-in-fact for all purposes under this Agreement and agent the Escrow Agreement, including the full power and authorizes Sellers’ Representative, acting for such Seller and in authority to act on such Seller’s namebehalf: (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, place instruments and steaddocuments contemplated hereby or executed in connection herewith (including the Escrow Agreement); (ii) to negotiate disputes arising under, or relating to, this Agreement (including with respect to 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 Seller any funds received on behalf of the Sellers under this Agreement and the other agreements, instruments and documents contemplated hereby or executed in connection herewith (including the Escrow Agreement); (iv) to withhold any amounts received on behalf of the Sellers pursuant to this Agreement or any other agreements, instruments and documents contemplated hereby or executed in connection herewith (including the Escrow Agreement) or otherwise to satisfy any and all capacitiesobligations or liabilities incurred by the Sellers or the Sellers Representative in the performance of its duties hereunder and thereunder; (v) to execute and deliver any consent, amendment or waiver to do this Agreement or any other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Escrow Agreement) (without the prior approval of any of the Sellers); and perform every act and thing required or permitted (vi) to take all other actions to be done taken by or on behalf of the Sellers in connection with respect to all matters arising under this AgreementAgreement or any other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Escrow Agreement Agreement). Each of the Sellers 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 other Seller Ancillary AgreementSeller. All actions taken decisions, actions, consents and instructions by Sellers’ the Sellers Representative hereunder, under shall require the Escrow Agreement or under any other Seller Ancillary Agreement 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 and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and all actions which it believes are necessary or appropriate under such duties and obligations shall be determined solely by the express provisions of this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact severally, for itself only and agent full power not jointly, agrees to indemnify and authority to do hold harmless the Sellers Representative and perform each its Representatives against all expenses (including attorneys’ fees), judgments, fines and every act and thing necessary or desirable to be done amounts incurred by such Persons in connection with any Action to which the matters described above, as fully to all intents and purposes as Sellers Representative or such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done other Person is made a party by virtue hereof. Without limiting the generality reason of the foregoingfact that it is or was acting as, Sellers’ or at the direction of, the Sellers Representative shall have full power and authority pursuant to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment agreement, instrument or waiver hereof document contemplated hereby or thereof on behalf of all Sellers and their successors. Buyers and executed in connection herewith (including the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller).
(c) Neither the Sellers Representative nor any of its Representatives shall incur any liability to any Seller by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting actual, intentional and knowing fraud. The grant Sellers Representative and its Representatives shall have no liability in respect of authority provided for 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 this Section 13.7 (i) is coupled with an interest and is being grantedcontract or tort, or whether at law or in partequity, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the deathor otherwise, incompetency, bankruptcy if such Persons took or liquidation of either Seller and shall be binding on omitted taking any successor thereto, and (ii) shall survive any distribution from the Escrow Agentaction in good faith.
(d) Sellers’ The Sellers Representative shall not have by reason 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 fiduciary relationship majority-in-interest (determined in respect accordance with Section 11.1(b) of either 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 prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent and the date that is ten (10) days after such consent is delivered to the Buyer.
(f) In the event that the Sellers Representative becomes unable or unwilling to continue in its capacity as Sellers Representative, or if the 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. Sellers’ 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 either any Seller for any action taken or omitted to be taken by Sellers’ the Buyer in such reliance or with respect to actions, decisions and determinations of the Sellers Representative. The Buyer shall not have any right to object to, and shall cause its Affiliates (including after the Closing, the Blockers, the Company and the Company’s Subsidiaries) not 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 hereunder for any action or under any other document hereunder, inaction taken or not taken by the Sellers Representative in connection therewithsuch Person’s capacity as Sellers Representative, except that Sellers’ Representative to the extent such action or inaction shall not be relieved have been held by a court of any Liability imposed by Law for actual competent jurisdiction to constitute actual, intentional and knowing fraud, gross negligence or willful.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mattress Firm Holding Corp.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes At the Closing, each of the Indemnifying Parties, shall appoint Shareholder Representative Services LLC as its agent and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, as the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellersthe Indemnifying Parties to give and receive notices and communications (including to Buyer), as fully as if Sellers were acting on their own behalfto authorize payment to Buyer from the Escrow Fund in satisfaction of claims by Parent or Buyer, including:
to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, and to take all other actions that are either (i) receiving necessary or appropriate in the Estimated Closing Date Cash Payment judgment of the Sellers’ Representative for the accomplishment of the foregoing or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in specifically mandated by the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf terms of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing . Such agency may be changed by the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers Indemnifying Parties from time to time as upon not less than thirty (30) days prior written notice to Buyer; provided, however, that the Sellers’ Representative may deem necessary or desirable to fulfill resign at any time, and may not be removed unless holders whose aggregate Pro Rata Share is a majority of the interests and purposes of this Agreement, the Escrow Agreement Aggregate Cash Consideration and the other Seller Ancillary Agreements aggregate Stock Consideration payable hereunder agree to such removal and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf the identity of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Sellersubstituted agent. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent 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 entered into by and among Shareholder Representative Services LLC, the Company and certain of the Sellers. After the Closing, notices or communications to or from the Sellers’ Representative shall constitute notice to or from the Indemnifying Parties.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken act done or omitted by hereunder as the Sellers’ Representative hereunder 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 under any other document hereunder, expenses arising out of or in connection therewithwith the acceptance or administration of the Sellers’ Representative’s duties hereunder, except 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 Section 9 (“Sellers’ Representative Expenses”), in 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 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 event will the Sellers’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. The Sellers acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Sellers’ Representative or the termination of this 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 Sellers’ 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 any Liability imposed by Law for actual fraud, gross negligence or willfulthe Sellers’ Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (Zynga Inc)
Sellers’ Representative. (a) Each Seller The Sellers Representative is hereby irrevocably constitutes appointed by each of the Sellers as the representative, agent, proxy, and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact (coupled with an interest) for all the Sellers for all purposes under this Agreement including the full power and agent and authorizes authority on the Sellers’ Representativebehalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, acting instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, claims for indemnification under Article IX), (iii) to receive and disburse to, or caused to be received or disbursed to, any Seller any funds received on behalf of such Seller and in such Seller’s nameunder this Agreement (including, place and steadfor the avoidance of doubt, in any portion of the Purchase Price) or otherwise, (iv) to withhold any amounts received on behalf of any Seller pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Purchase Price) or to satisfy (on behalf of the Sellers) any and all capacitiesobligations or Liabilities of any Seller or the Sellers Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Sellers) in connection with the indemnification of the Buyer Indemnified Parties under Article IX), (v) to do execute and perform every act deliver any amendment or waiver to this Agreement and thing the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Seller) and (vi) to take all other actions to be taken by or on behalf of any Seller in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. 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 each Seller. All decisions and actions by the Sellers Representative shall be binding upon each Seller, 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.
(b) The Buyer shall be entitled to rely conclusively on the instructions and decisions of the Sellers Representative as to any actions required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ the Sellers Representative or any Seller hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative no party hereunder shall have full power and authority to interpret all any cause of action against the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller Buyer for any action taken by the Buyer in reliance upon the written instructions or omitted by Sellers’ Representative hereunder decisions of the Sellers Representative. Except as set forth in this Section 10.15(b), nothing in this Section 10.15 shall have any effect on any rights, obligations or under Liabilities of the Buyer or any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulBuyer Indemnified Party.
Appears in 1 contract
Sources: Purchase Agreement (SciPlay Corp)
Sellers’ Representative. (a) Each By the adoption of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Seller irrevocably constitutes and appoints VPM shall be deemed to have approved Shareholder Representative Services LLC as “the Sellers’ Representative” to act Representative as such Seller’s true of the Closing for all purposes in connection with this Agreement and lawful attorney-in-fact and agent and authorizes any related agreements. The Sellers’ RepresentativeRepresentative shall thereupon be authorized to (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents, acting for such instruments and/or agreements, (ii) provide an updated Allocation Certificate regarding the distribution of post-closing payments to Sellers (iii) serve as the named party with respect to any claims hereunder on behalf of each of the Sellers, (iv) grant any consent or approval on behalf of the Sellers under this Agreement and any ancillary agreement and make all other elections or decisions contemplated by this Agreement and any ancillary agreement, (v) defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against a Seller, (vi) defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of a Seller, (vii) give and receive on behalf of the Sellers any and all notices from or to any Seller pursuant to this Agreement or any ancillary agreement and (viii) amend, modify or supplement this Agreement and any ancillary agreement in each such Seller’s name, place and stead, in any and all capacitiesas if such Seller had personally done such act, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreementand, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderhereby accepts such appointment. The death, under the Escrow Agreement incapacity, insolvency or under bankruptcy of any other Seller Ancillary Agreement Sellers shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing not terminate such funds in accordance with this Agreement appointment or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution authority and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent agency of the Sellers’ Representative.
(b) Each Seller grants unto said attorney. The power-inof-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for attorney granted in this Section 13.7 (i) 4.19 is coupled with an interest and is being grantedirrevocable. In the event the Sellers’ Representative becomes unable to perform its responsibilities hereunder or resigns from such position, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any a successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall be elected by the Sellers receiving a majority of the consideration received by such Sellers on the Closing Date.
(b) Immediately prior to the Closing, the Company will wire US$20,000 in the aggregate (the “Expense Fund”) to the Sellers’ Representative, which will be used for any expenses incurred by the Sellers’ Representative. The Sellers will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Sellers’ Representative’s responsibilities, the Sellers’ Representative will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Sellers. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by reason the Sellers at the time of Closing.
(c) The Sellers’ Representative will incur no liability in connection with its services pursuant to this Agreement a fiduciary relationship in respect of either Sellerand any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Sellers’ Representative shall not be liable for any action or omission pursuant to either Seller the advice of counsel. The Sellers shall indemnify the Sellers’ Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, 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 Sellers’ Representative, the Sellers’ Representative 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 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. 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, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Sellers’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers’ Representative or the termination of this Agreement.
(d) Following Closing, Parent and the Surviving Entity shall be entitled to rely exclusively upon any communication or instruction given or other action taken by the Sellers’ Representative on behalf of the Sellers pursuant to this Agreement and the ancillary agreements, and shall not be liable for any action taken or omitted by not taken in good faith reliance on a communication or other instruction from the Sellers’ Representative hereunder or under on behalf of the Sellers. Notwithstanding anything herein to the contrary, following Closing, none of Parent and the Surviving Entity, shall have any other document hereunder, or in connection therewith, except that liability to any Seller for any payments made pursuant to an updated Allocation Certificate provided by the Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulprovided such payment is made in accordance with such updated Allocation Certificate.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Portage Biotech Inc.)
Sellers’ Representative. (a) Each By approving this Agreement and the transactions contemplated hereby, each Seller Party hereby irrevocably constitutes authorizes and appoints VPM as “Sellers’ Representative” to act Representative as such Seller’s true Seller Party's representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for to act on behalf of such Seller Party with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done taken by Sellers’ Representative pursuant to this Agreement or the Ancillary Documents, including, but not limited to, the exercise of the power 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 matters arising documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or 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, the Escrow Agreement and on any other action taken or purported to be taken on behalf of any Seller Ancillary AgreementParty by Sellers’ Representative, as being fully binding upon such Seller Party. All actions taken 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, under the Escrow Agreement or under including any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall take 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 and all actions which it believes are necessary act of any one Seller Party or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf by operation of Sellers, as fully as if Sellers were acting on their own behalf, including:Law.
(ic) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary resign at any time, and may be removed for any reason or desirable to fulfill no reason by the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary vote or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellersthe Seller Parties; provided, provided that notice thereof is given promptly by the successor however, in no event shall Sellers’ Representative to Buyers and resign or be removed without the Escrow Agent and to each Seller.
(c) The grant Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive Sellers’ Representative. In the event of the death, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and Sellers’ Representative, a new Sellers’ Representative shall be binding 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 any successor thereto, the decisions and (ii) shall survive any distribution from actions of the Escrow Agentprior Sellers’ Representative.
(d) Sellers’ Representative shall not have by reason of be liable to the Seller Parties for actions taken pursuant to this Agreement or any Ancillary Document, except to the extent such actions shall have been determined by a fiduciary relationship in respect court of either Seller. 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’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and not be liable to either Seller for any action taken or omitted by jointly, indemnify and hold harmless Sellers’ Representative hereunder or under from and against, compensate it for, reimburse it for and pay any other document hereunderand all losses, or liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection therewithwith its activities as Sellers’ Representative under this Agreement, except in each case as such losses are suffered or incurred; provided, that in the event it is finally adjudicated that any such loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, Sellers’ Representative shall not be relieved reimburse Seller Parties the amount of any Liability imposed by Law for actual such indemnified losses attributable to such gross negligence, fraud, gross negligence intentional misconduct or willfulbad faith.
Appears in 1 contract
Sellers’ Representative. (a) Each At the Closing, each Seller irrevocably constitutes agrees that Vista Equity Partners Management, LLC shall be constituted and appoints VPM appointed as “the Sellers’ Representative” . Pursuant to act the terms of the applicable Holdings Equity Agreement, each Consideration Recipient will constitute and appoint Vista Equity Partners Management, LLC, as such Seller’s true and lawful attorney-in-fact and agent and authorizes the Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and For purposes of this Agreement, the Escrow 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 other Seller Ancillary Agreements Purchase Price Adjustment Escrow Agreement, with full power and engaging agents and representatives authority on such Consideration Recipients’ behalf (including accountants and legal counseli) to assist consummate the transactions contemplated herein, (ii) to pay such Consideration Recipients’ expenses (whether incurred on or after the date hereof) incurred in connection herewith with the negotiation and therewith;
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) taking any and to take all action other actions to be taken by or on behalf of Sellers from time the Consideration Recipients in connection herewith, (viii) to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waivernegotiate, amendmentsettle, agreement, opinion, certificate or other document contemplated compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding the Escrow Agreement or Working Capital Amount and any other Seller Ancillary Agreement;
(viii) delivering all notices required adjustment pursuant to be delivered by either Seller; and
Section 1.5 and any Indemnification Claim made pursuant to Section 9.3(a)(ii), (ix) receiving 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 notices rights which such Consideration Recipient is, or the Consideration Recipients collectively are, permitted or required to be delivered to either Sellerdo or exercise under this Agreement. No Seller may take any The Consideration Recipients, by approving the principal terms of the actions set forth in paragraphs (i) through (ix) of Share Purchase, executing this Section 13.7(a) without Agreement or the prior written consent of Holdings Equity Agreements and/or accepting the Sellers’ Representative.
(b) Each Seller grants consideration payable to them hereunder or thereunder, irrevocably grant unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described abovetransactions contemplated by this Agreement, as fully to all intents and purposes as such Seller the Consideration Recipients might or could do in person. Each Consideration Recipient agrees that such agency and proxy are coupled with an interest, hereby ratifying and confirming all that are therefore irrevocable without the consent of the Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, incapacity or bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulConsideration Recipient.
Appears in 1 contract
Sellers’ Representative. Each of the Sellers shall appoint Metromedia as its lawful representative (athe "Seller Representative") Each to take such actions on behalf of the Sellers as are authorized by this Agreement and as otherwise may be necessary following the Closing to more effectively consummate the transactions contemplated by this Agreement. The Seller irrevocably constitutes and appoints VPM as “Sellers’ Representative” to act as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and steadRepresentative shall be authorized, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for name and on behalf of Sellerseach Seller in his, her or its capacity as fully as if Sellers were acting on their own behalfsuch, including:
to (i) receiving dispute or refrain from disputing any claim made by the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow under this Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreementagreements contemplated hereby, as applicable;
(ii) participating in the adjustmentnegotiate or compromise any dispute which may arise under and exercise or refrain from exercising remedies available under, objectionand made any determination under, resolution and other processes or procedures pursuant to this Agreement and the agreements contemplated hereby, and sign any releases or either Seller Ancillary Agreementother documents with respect to such dispute or remedy, including pursuant to Articles III or XI;
(iii) initiatingwaive any condition contained in this Agreement and the agreements contemplated hereby, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of (iv) give any and all consents under this Agreement and the agreements contemplated hereby, and (v) give such instructions and do such other things and refrain from doing such other things as the Seller Representative shall deem appropriate to carry out the provisions of this Agreement and the agreements contemplated hereby. Each of the Sellers pursuant agrees that it shall be bound by all actions taken or omitted to Article XI;
be taken by the Seller Representatives, all notices received, and agreements and determinations made, and documents executed and delivered by the Seller Representative under this Agreement and the agreements contemplated hereby. The Parties shall acknowledge and agree that the Seller Representative shall have no liability for acting in its capacity as such, except for such liabilities arising our of its gross negligence or willful misconduct. Each of the Sellers shall agree to indemnify and hold the Seller Representative harmless from any claims, liabilities, costs and expenses (ivincluding reasonable attorneys' fees) initiating or taking any action with respect to any suit, action or proceeding arising out of or related relating to its actions as Seller Representative hereunder, other than any such claims, liabilities, costs and expenses finally determined by a court of competent jurisdiction to have arisen out of such Seller Representative's gross negligence or willful misconduct. The Sellers agree that the Buyer shall be entitled to deal exclusively with the Seller Representative in respect of all interactions, notices, disputes and other matters relating to the Seller's obligations under this Agreement;
(v) executing Agreement and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions Representative agrees to act on behalf of the Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulall such matters.
Appears in 1 contract
Sources: Stock Purchase Agreement (Precision Engine Products Corp)
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, Holdings and each STR Seller and STRG Seller hereby irrevocably constitutes and appoints VPM as ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Sellers’ Representative” to act ”), as such Seller’s the true and lawful agent and attorney-in-fact of Holdings, STR Sellers and agent and authorizes Sellers’ Representative, acting for such STRG Seller and with full power of substitution to act in such Seller’s the name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead of Sellers with respect to all matters arising under the transfer of the Equity Interests owned by Sellers in accordance with the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderto act on behalf of Holdings, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all STR Sellers and their respective heirsSTRG Seller in any litigation or arbitration involving the Transaction Documents and the transactions contemplated thereby, estatesto take or refrain from taking any action by a Seller under this Agreement following the Closing and to do or refrain from doing all such further acts and things, executors, personal representatives and successors and permitted assigns execute all such documents as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are deem necessary or appropriate under in connection with the transactions contemplated by this Agreement, including, without limitation, the Escrow Agreement or power:
(a) to act for STR Sellers and STRG Seller with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any other Seller Ancillary Agreement for and indemnity claim on behalf of Sellers, as fully as if STR Sellers were acting on their own behalf, including:and STRG Seller and to transact matters of litigation;
(ib) receiving to execute and deliver all ancillary agreements, certificates and documents that Sellers’ Representative deems necessary or appropriate in connection with the Estimated Closing Date Cash Payment consummation of the transactions contemplated by the Transaction Documents;
(c) to do or refrain from doing any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving further act or deed on behalf of Holdings, STR Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either STRG Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as that Sellers’ Representative may deem deems necessary or desirable appropriate in its sole discretion relating to fulfill the interests subject matter of the Transaction Documents as fully and purposes of this Agreementcompletely as Holdings, the Escrow Agreement STR Sellers and the other STRG Seller Ancillary Agreements and engaging agents and representatives could do if personally present; and
(including accountants and legal counseld) to assist receive service of process in connection herewith and therewith;
(vii) taking with any and all action on behalf claims under the Transaction Documents. The appointment of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waivershall be deemed coupled with an interest and shall be irrevocable, amendmentand Buyers, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or and any other Seller Ancillary Agreement;
(viii) delivering Person may conclusively and absolutely rely, without inquiry, upon any action of Sellers’ Representative in all matters referred to herein. All notices required to be made or delivered by either Seller; and
(ix) receiving all notices required Buyers after the Closing to Sellers shall be delivered made to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Representative for the benefit of Sellers and shall discharge in full all such notice requirements of Buyers to Sellers with respect thereto. Holdings, STR Sellers and STRG Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming confirm all that Sellers’ Representative may lawfully shall do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, his appointment as Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this AgreementHoldings, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all STR Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either STRG Seller. Sellers’ Representative shall not be liable to either act for Holdings, STR Sellers and STRG Seller for any action taken or omitted by on all of the matters set forth in the Transaction Documents in the manner Sellers’ Representative hereunder or believes to be in the best interest of Holdings, STR Sellers and STRG Seller and consistent with the obligations under any other document hereunderthe Transaction Documents, or in connection therewith, except that but Sellers’ Representative shall not be relieved responsible to Holdings, STR Sellers and STRG Seller for any Losses Holdings, STR Sellers and STRG Seller may suffer by the performance by Sellers’ Representative of any Liability imposed his duties under the Transaction Documents, other than Losses arising from willful violation of Law by Law for actual fraud, Sellers’ Representative or gross negligence in the performance by Sellers’ Representative of his duties under this Section 12.16.
(e) Buyers understand that the Companies and Sellers have been represented by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as counsel to the Companies and Sellers, including in the preparation, negotiation and execution of this Agreement and the transactions contemplated hereby and thereby, and that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has not represented any director or willfulemployee of the Companies or Sellers in the preparation, negotiation and execution of this Agreement or the transactions contemplated hereby or thereby. Buyers acknowledge and agree, on behalf of themselves and their Affiliates, that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may after the Closing represent the Sellers’ Representative, the Sellers and/or their Affiliates in matters related to the transactions contemplated by this Agreement, including the representation of such Persons in matters related to Section 2.3 and to post-Closing claims made by Buyers and any other Parties under the indemnification provisions in this Agreement and other claims that may arise out of or relate to this Agreement. Buyers hereby acknowledge, on behalf of themselves and their Affiliates, that it has had an opportunity to ask for and has obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and it hereby waives any conflict arising out of such future representation with respect to the matters contemplated by this Agreement and the transactions contemplated hereby. Buyers, for themselves and their Affiliates, and its and its Affiliates’ respective successors and assigns, agrees that any privilege attaching as a result of ▇▇▇▇▇ Donelson’s engagement and representation in connection with this Agreement or the transactions contemplated hereby will survive the Closing and remain in effect, and from and after the Closing such privilege shall be controlled by the Sellers (and not by Buyers or the Companies).
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes acknowledges, ratifies and appoints VPM agrees to the appointment of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as the representative of such Seller (the “Sellers’ Representative” ”) in connection with the acquisition of the Company by ▇▇▇▇▇ pursuant to the terms of this Agreement. The Sellers’ Representative will act as such Seller’s true agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such on behalf of each Seller and with full power of substitution to act in such Seller’s the name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead of the Sellers with respect to all matters arising under this Agreementto, as applicable, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken transfer of the Interests owned by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant holders thereof to the Escrow Agreement and distributing such funds ▇▇▇▇▇ in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof act on behalf of each Seller in any litigation or arbitration involving this Agreement, do or refrain from doing all Sellers such further acts and their successors. Buyers things, and execute all such documents as the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the Escrow Agreement or power:
(i) to act for the Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any other Seller Ancillary Agreement claim on behalf of Sellers and to be given transact matters of litigation;
(ii) to either Seller. A successor to execute and deliver any certificate, instrument and/or agreement that the Sellers’ Representative may be chosen deems necessary or appropriate in connection with the consummation of the transactions contemplated by a majority this Agreement including with respect to the Purchase Price Adjustment in interest of SellersSection 3.3 and the Earn-Out Consideration in Section 3.2;
(iii) to receive funds under this Agreement and give receipts for such funds, provided it being understood that notice thereof is given promptly any such funds received by the successor Sellers’ Representative under this Agreement on behalf of Sellers shall be distributed by the Sellers’ Representative to Buyers and the Escrow Agent and other Sellers in accordance with their respective pre-closing ownership percentages as if such funds were distributed directly to each Seller.such Sellers;
(civ) The grant to do or refrain from doing any further act or deed on behalf of authority the Sellers that the Sellers’ Representative deems necessary or appropriate in 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 Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either SellerAgreement. The Sellers’ Representative shall not be liable responsible to either any Seller for any action taken loss or omitted 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 hereunder against any and all actions, claims (whether or under any other document hereundernot 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 therewithwith any claim, except that 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 herein. 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 shall not be relieved for his reasonable expenses incurred on behalf of any Liability imposed by Law for actual fraud, gross negligence or willfulthe Sellers hereunder.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Janel Corp)
Sellers’ Representative. (a) Each Seller irrevocably constitutes In order to efficiently administer (i) the payment of the Purchase Price, (ii) the resolution of disputes relating to any Disputed Amounts, (iii) the defense and/or settlement of any indemnity claims of any Indemnified Party pursuant to ARTICLE VII, and appoints VPM as “(iv) the Escrowed Amount and the Escrow Agreement, the Sellers’ Representative” Representative is hereby designated by, and agrees to act as such Seller’s the representative of, the Sellers.
(b) By approving this Agreement and/or accepting their proportionate share of the Closing Date Share Purchase Price Payment and the Closing Date Owned Real Property Purchase Price Payment, each Seller hereby constitutes, and the Sellers collectively constitute, the Sellers’ Representative as their agent, proxy, and true and lawful attorney-in-attorney in fact for purposes of, and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, full authority on the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by behalf of each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
: (i) receiving to receive payment of and to allocate the Estimated Closing Date Cash Payment or Purchase Price; (ii) to make all decisions relating to the resolution of disputes relating to any Earnout Payment Disputed Amounts; (including iii) to take all action necessary in each case connection with the defense and/or settlement of any adjustments thereto) from Buyers and receiving on behalf indemnity claims of Sellers any amounts disbursed Indemnified Party pursuant to ARTICLE VII; (iv) to give and receive all notices required to be given to the Escrow Agreement and distributing such funds in accordance with Sellers under this Agreement or the Escrow Agreement, as applicable;
; (iiv) participating to amend this Agreement in the adjustment, objection, resolution accordance with Section 9.8 and other processes or procedures to deliver any Updated Disclosure Schedules pursuant to Section 5.3, and (vi) to take any and all additional action as is contemplated to be taken by the Sellers’ Representative or on behalf of the Sellers pursuant to the terms of this Agreement or either the Escrow Agreement. Each Seller Ancillary 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 and actions by the Sellers’ Representative (to the extent authorized by and in accordance with this Agreement) shall be binding upon all of the Sellers, including and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Sellers’ Representative shall be entitled to engage such counsel, experts, consultants and other advisors as he shall deem necessary in connection with exercising his powers and performing his functions hereunder and (in the absence of bad faith on the part of the Sellers’ Representative) shall, solely as to the Sellers, be entitled to conclusively rely on the opinions and advice of such persons.
(c) In the event that the Sellers’ Representative becomes unable to perform his responsibilities hereunder or resigns from such position, another Person designated by a majority in interest of the Sellers in writing to Buyer shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(d) Buyer has the right to rely conclusively on the instructions and decisions of the Sellers’ Representative as to the settlement of any claims for indemnification by Buyer pursuant to Articles III ARTICLE VII, or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf required to be taken by the Sellers’ Representative hereunder, and no party hereunder will have any Action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of any and all Sellers pursuant to Article XI;the Sellers’ Representatives.
(ive) initiating Each of the Sellers shall severally, and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, cost, damage, claim or taking any action with respect to any suit, action or proceeding expense (including attorneys’ fees) which may be incurred by Sellers’ Representative arising out of or related relating to this Agreement;
(v) executing the performance of his duties and performing obligations as the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary hereunder or desirable under the Transaction Documents, except to fulfill the interests and purposes extent as the consequence of this Agreementfraud, gross negligence or willful misconduct on the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent part of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(cf) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either any Seller, except in respect of amounts received on behalf of such Seller. The Sellers’ Representative shall not be liable to either any Seller for any action taken or omitted by the Sellers’ Representative or any agent employed by the Sellers’ Representative hereunder or under any other document hereunder, or entered into in connection therewithherewith, except that the Sellers’ Representative shall not be relieved of any Liability liability imposed by Law law for actual fraudwillful 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, gross negligence and if any such apportionment or willfuldistribution 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 the Sellers’ Representative shall incur any liability to any Seller by virtue of the failure of the Sellers’ Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of the Sellers’ Representative’s duties hereunder, except for actions or omissions constituting fraud or bad faith.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Selling Equityholder has irrevocably constitutes constituted and appoints VPM as “appointed Sellers’ Representative” to act Representative as such Seller’s its true and lawful agent and attorney-in-fact and agent and authorizes fact, with full power of substitution to perform the duties of Sellers’ Representative, acting for such Seller Representative under the terms of this Agreement and to act in such SellerSelling Equityholder’s name, place place, and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead with respect to all matters arising under transactions contemplated by and all terms and provisions of this Agreement, the Escrow Agreement and the Related Documents, including without limitation: to act on such Selling Equityholder’s behalf in any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Proceeding involving this Agreement or under any other Seller Ancillary Agreement shall be binding upon Related Document, to give and receive notices and communications on behalf of the Selling Equityholders where applicable, and to do or refrain from doing all Sellers such further acts and their respective heirsthings, estates, executors, personal representatives and successors and permitted assigns to execute all such documents as if expressly confirmed and ratified in writing by each of them. the Sellers’ Representative shall take any and all actions which it believes are deem necessary or appropriate under in connection with the Contemplated Transactions and to the extent it is authorized to do so hereunder, including the power to (i) to incur reasonable expenses in the fulfillment of its duties hereunder, (ii) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with courts orders and awards of arbitrators with respect to claims for indemnification pursuant to this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement Related Document, (iii) execute and deliver all amendments, waivers, any Related Document, stock powers, certificates, and documents that the Sellers’ Representative deems reasonably necessary or appropriate in connection with the consummation of the Contemplated Transactions, (iv) pay the reasonable out of pocket fees and expenses of professionals and the Escrow Agent incurred in connection with the Contemplated Transactions, (v) seek contribution from any Selling Equityholder for contribution to the fees and on behalf expenses of the Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving ’s Representative and to any indemnification payments made by the Estimated Closing Date Cash Payment Sellers’ Representative or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed other Selling Equityholder pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
; (vi) taking bring, defend, handle, settle, and otherwise deal with in every way any indemnification dispute under ARTICLE VI, and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking receive service of process in connection with any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated claims under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativewhere applicable.
(b) Each Seller grants unto said attorney-in-fact and agent full The Sellers’ Representative’s power and authority to do and perform each and every act and thing necessary duties may be exercised, discharged or desirable to be done in connection with performed by any person or representative authorized by the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative to act on its behalf. The appointment of the Sellers’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Purchaser and any other Person may lawfully conclusively and absolutely rely, without inquiry, upon any action of the Sellers’ Representative in all matters referred to herein. The Selling Equityholders hereby confirm all that the Sellers’ Representative shall do or cause to be done by virtue of its appointment as the Sellers’ Representative in accordance with the provisions hereof. Without limiting the generality of the foregoing, The Sellers’ Representative shall have full power act for all Selling Equityholders on all of the matters set forth in this Agreement in the manner the Sellers’ Representative, in its discretion, believes to be in the best interest of the Selling Equityholders and authority to interpret all consistent with the terms and provisions of Sellers’ Representative’s obligations under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant Sellers’ Representative shall not be responsible or liable to any Selling Equityholder for, and each Selling Equityholder hereby irrevocably releases the 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 Selling Equityholder may incur or suffer as a result of authority provided for any act, failure, or omission whatsoever of the Sellers’ Representative in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into performing his duties under this Agreement and shall be irrevocable and survive absent the death, incompetency, bankruptcy Sellers’ Representative’s fraud or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agentwillful misconduct.
(d) The Selling Equityholders shall, upon the Sellers’ Representative’s first demand fully indemnify and hold the Sellers’ Representative, in its capacity as such, harmless, on a joint and several basis from and against any losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs, or expenses, other than any such losses or damages arising from fraudulent acts or the willful misconduct of the Sellers’ Representative, incurred in the performance of its powers or duties as the Sellers’ Representative shall not have by reason of under this Agreement a fiduciary relationship (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 respect all questions arising hereunder, rely on the advice of either Seller. 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 either Seller for 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 action taken or omitted by Selling Equityholder shall otherwise exist against the Sellers’ Representative.
(f) The Sellers’ Representative hereunder or under may resign from its position as Sellers’ Representative h▇▇▇▇▇▇▇▇ at any other document hereundertime, or by delivery of at least 30 days’ prior written notice to the Selling Equityholders and Purchaser. The Selling Equityholders representing in connection therewithinterest at least a majority of the aggregate Pro Rata Portion attributable to all Selling Equityholders shall have the authority, except that and, if the Sellers’ Representative shall resign, be dissolved, or otherwise be legally incapacitated or unwilling to fulfill its responsibilities as Sellers’ Representative hereunder, the duty, to replace the Sellers’ Representative upon prompt written notice to 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.
(g) All reasonable out-of-pocket expenses incurred by the Sellers’ Representative in connection with the performance of its duties as Sellers’ Representative shall be borne and paid exclusively by the Selling Equityholders. Such expenses borne by the Sellers’ Representative in connection with the performance of its duties as Sellers’ Representative and which were not covered in advance shall be relieved reimbursed by the Selling Equityholders as provided above or, at the election of the Sellers’ Representative, from releases of the Escrow Amount or the Representative Fund.
(h) Notwithstanding anything to the contrary in this Agreement, on the Closing, from the amount of the Selling Equityholders Cash Amount payable by Purchaser to the Selling Equityholders, the amount of the Representative Fund (allocated between all Selling Equityholders in accordance with their respective Pro Rata Portions) shall be withheld and deposited in escrow to be held by the Escrow Agent pursuant to the terms of this Agreement and the Escrow Agreement, such amount being intended for use by the Sellers’ Representative, and released to it by the Escrow Agent from time to time at its request, in its discretion, solely for the purposes of covering out-of-pocket expenses incurred by it in carrying out its duties hereunder or for distribution to the Selling Equityholders in the amounts designated by the Sellers’ Representative in writing (in all cases in accordance with their respective Pro Rata Portions). The Sellers’ Representative shall send an account statement to each of the Selling Equityholders on a quarterly basis reflecting any activity in the Representative Fund for the preceding quarter. The Sellers’ Representative may instruct the Escrow Agent to invest and handle the amounts of the Representative Fund until the allocation or payment thereof, as the case may be, according to its commercial reasonable discretion. Contemporaneous with or as soon as practicable following the completion of the Sellers’ Representative’s responsibilities hereunder and in any event no later than the date falling on the three (3) year anniversary of the Closing Date, the Sellers’ Representative shall instruct the Escrow Agent to release the remaining balance of the Representative Fund, less an amount deemed reasonably necessary by the Sellers’ Representative for use in connection with any outstanding, unresolved claims of Losses brought pursuant to Section 6.3, to the Selling Equityholders in accordance with their respective Pro Rata Portions.
(i) 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 Selling Equityholders, and Purchaser shall have no duty to inquire as to the acts and omissions of the Sellers’ Representative. Each Selling Equityholder hereby acknowledges and irrevocably agrees that (i) all deliveries by Purchaser to the Sellers’ Representative shall be deemed deliveries to the Selling Equityholders, (ii) Purchaser shall not have any Liability imposed with respect to any aspect of the distribution or communication of such deliveries between the Sellers’ Representative and any Selling Equityholder, and (iii) any disclosure made to the Sellers’ Representative by Law or on behalf of Purchaser shall be deemed to be a disclosure made to each Selling Equityholder. Each Selling Equityholder hereby agrees that any payment made by or on behalf of Purchaser to the Sellers’ Representative on such Selling Equityholder’s behalf shall be deemed a direct payment to such Selling Equityholder, and such Selling Equityholder shall have no recourse to Purchaser in the event that such payment is not delivered to such Selling Equityholder by the Sellers’ Representative for actual fraud, gross negligence or willfulany reason.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as R▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Sellers’ Representative” to act ”), as such Seller’s true and lawful attorney-in-fact and agent and authorizes Sellers’ Representativein connection with the matters described in this Section 7.2, acting for such Seller and in such Seller’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant subject to the Escrow Agreement limitations specified herein. This power is irrevocable and distributing such funds in accordance coupled with this Agreement an interest, and shall not be affected by the death, incapacity, illness, dissolution or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant inability to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf act of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller hereby irrevocably grants unto said attorney-in-fact and agent the Sellers’ Representative full power and authority, effective from and after the date hereof:
(i) to (A) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Buyer Indemnified Party under this Agreement for which the Sellers may be liable (including under Section 1.4 or Article 6), (B) negotiate and compromise, on behalf of such Seller, any dispute involving the Sellers that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement with respect to any matter that involves the Sellers, and (C) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy involving the Sellers;
(ii) to amend or modify this Agreement or any Ancillary Agreement on behalf of all Sellers, or to grant any waiver hereunder or thereunder;
(iii) to engage attorneys, accountants and agents at the expense of the Sellers with respect to the matters as to which the Sellers’ Representative is granted the authority to do act under this Section 7.2;
(iv) to pay or distribute to the Sellers any portion of the Purchase Price that may be delivered to the Sellers’ Representative on behalf of the Sellers in accordance with the instructions of the Sellers;
(v) to authorize the release of the Holdback Amount or any portion thereof; and
(vi) to take such other actions as the Sellers’ Representative deems appropriate in connection with such Seller’s rights and perform each and every act and thing necessary obligations hereunder, under any Ancillary Agreement or desirable to be done otherwise in connection with the matters described above, as fully to all intents and purposes as such Seller might transactions contemplated hereby or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerthereby.
(c) The grant Each Seller hereby agrees that:
(i) in all matters in which action by the Sellers’ Representative is required or permitted hereunder, the Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, or between any Seller and the Sellers’ Representative, and the Buyer and the Company shall be entitled to rely on any and all actions taken by the Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any Seller, regardless of whether the Buyer or the Company has knowledge of any such dispute or disagreement; and
(ii) the power and authority provided for of the Sellers’ Representative, as described in this Agreement, shall continue in force until all rights and obligations of the Sellers under this Agreement shall have terminated, expired or been fully performed.
(d) Notwithstanding the foregoing, but subject to the limitations on the authority granted to the Sellers’ Representative specified in this Section 13.7 7.2, each Seller agrees, at the request of the Sellers’ Representative: (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers take all actions reasonably necessary or appropriate to enter into this Agreement and shall be irrevocable and survive consummate the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding transactions contemplated hereby individually on any successor theretosuch Seller’s own behalf, and (ii) shall survive to deliver, individually on such Seller’s own behalf, any distribution from the Escrow Agentother documents reasonably required of such Seller pursuant to this Agreement.
(de) Sellers’ Representative and each Seller hereby acknowledge and agree that neither Buyer nor any Affiliate of Buyer shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. any liability to Sellers’ Representative shall not be liable or any Seller whatsoever with respect to either Seller for any action taken the actions, decisions or omitted by determinations of the Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulRepresentative.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Everyday Health, Inc.)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as “GA Escrow, LLC, a Delaware limited liability company (the "Sellers’ ' Representative” to act as such Seller’s "), the true and lawful agent and attorney-in-fact of the undersigned with respect to this Agreement and agent the Escrow Agreement and authorizes 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 arbitration (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 bring suit or seek arbitration and to comply with orders of courts and awards of arbitrators with respect to such Claims, (iii) to execute and deliver, on behalf of such Seller, the Escrow Agreement, any amendment thereto and any related agreements, (iv) to take any actions required to be taken pursuant to Section 2.3 and (v) to take all actions necessary in the judgment of the Sellers' Representative for the accomplishment of the foregoing, including, without limitation, pursuant to this Agreement, the Escrow Agreement or otherwise. All authority conferred or agreed to be conferred in this Agreement and every obligation of the undersigned hereunder will be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the Sellers and will not be affected by, and will survive, the death, incapacity or bankruptcy of the Sellers. Parent, Purchaser, the Escrow Agent and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Sellers' Representative, acting for such Seller as the action of the undersigned in all matters referred to in this Agreement and the Escrow Agreement.
(b) The Sellers' Representative shall incur no liability to the parties hereto with respect to any 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 such Seller’s namereliance upon any note, place and steaddirection, in any and all capacitiesinstruction, to do and perform every act and thing required consent, statement or permitted other documents believed by them to be done 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 Sellers' Representative shall have full power and authority to represent the Sellers, with respect to all matters arising under this Agreement, the Escrow Agreement Agreement, any amendment thereto and any other Seller Ancillary Agreement. All related agreements and all actions taken by the Sellers’ ' Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement thereunder shall be binding upon all Sellers and their respective heirsthe undersigned, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each the Sellers.
(c) Each of them. the Sellers agrees to reimburse the Sellers’ ' Representative shall take 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 and all actions which it believes are necessary or appropriate rights of the Sellers under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeagreements.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willful
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and hereby appoints VPM as “the Sellers’ Representative” to act Representative as such Seller’s true and lawful his or her attorney-in-fact and agent and authorizes Sellers’ Representativefact, acting for such Seller and in authorizing him to act on such Seller’s name, place and stead, in any and all capacities, behalf to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, supervise the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and Closing on behalf of the Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or to execute and deliver any Earnout Payment (including in each case Ancillary Documents and any adjustments thereto) from Buyers and receiving on behalf instruments of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate transfer or other document contemplated under this Agreement, documents required of the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering Sellers and to receive all notices required documents to be delivered by either Seller; and
Purchaser at the Closing, to take all actions (ixincluding giving any approvals or consents) receiving and make all notices required decisions contemplated by this Agreement (whether to be delivered to either Seller. No Seller may given before or after Closing), and take any of the actions set forth in paragraphs (i) through (ix) of other action permitted or required by this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary Agreement or desirable any Ancillary Document to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof taken on behalf of all the Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any particular Seller, and to administer all other Seller Ancillary Agreement to be given to either Sellermatters related hereto. A successor to The Sellers’ Representative may be chosen removed or replaced by one or more Sellers who together, as of the date hereof, hold a majority in interest of Sellersthe outstanding common stock of the CA Company; provided, provided that notice thereof is given promptly by the successor Purchaser consents to such replacement Sellers’ Representative to Buyers and Representative, which consent will not be unreasonably withheld. Each of the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 Sellers hereby agrees that (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason any liability to any of this Agreement a fiduciary relationship the other Sellers for any actions or omissions in respect of either Seller. connection with serving as the Sellers’ Representative absent willful misconduct or gross negligence; (ii) Purchaser and its Affiliates shall not be liable have no liability to either Seller the Sellers for any action actions or omissions of the Sellers’ Representative and Purchaser shall be entitled to rely upon any action, decision or direction taken, omitted to be taken or omitted given by the Sellers’ Representative without further action or inquiry; and (iii) any requirement (under this Agreement or any Ancillary Documents) that Purchaser make delivery to one or more Sellers shall be deemed satisfied by delivery to the Sellers’ Representative. Each of the CA Company Sellers agrees to reimburse the Sellers’ Representative for his, her or its pro rata portion of any costs or expenses incurred by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that with serving as the Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraudRepresentative, gross negligence or willfulin each case based on such CA Company Seller’s Proportionate Interest.
Appears in 1 contract
Sellers’ Representative. (a) Each of the Other Stockholder Sellers hereby irrevocably appoints the Principal Seller irrevocably constitutes and appoints VPM as (“Sellers’ Representative” to act ”) as such Seller’s true and lawful Other Stockholder Sellers’ representative, attorney-in-fact and agent and authorizes Sellers’ Representativeagent, acting for such Seller and with full power of substitution to act in such Seller’s the name, place and steadstead of such Seller with respect to this Agreement and any Escrow Agreement, and to act on behalf of such Seller in any amendment of or litigation or arbitration involving this Agreement and all capacities, any Escrow Agreement and to do or refrain from doing all such further acts and perform every act things, and thing to execute all such documents, as such Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the Contemplated Transactions, 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 any Escrow Agreement;
(ii) 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 done given in connection with respect to all matters arising under the consummation of the transactions contemplated by this Agreement, the Escrow Agreement and any other Escrow Agreement (it being understood that such Seller Ancillary Agreement. All actions taken by shall execute and deliver any such documents which Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant agrees to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XIexecute);
(iii) initiatingto 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, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf including service of any and all Sellers pursuant to Article XIprocess in connection with arbitration;
(iv) initiating to take all actions which under this Agreement and any Escrow Agreement may be taken by such Seller and to do or taking refrain from doing any action with respect 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 and any suit, action or proceeding arising out of or related to this Agreement;Escrow Agreement as fully and completely as such Seller could do if personally present; and
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and to receive all actions on behalf of Sellers from time amounts to time as be paid to Sellers’ Representative may deem necessary or desirable pursuant to fulfill the interests and purposes of this Agreement, the any Escrow Agreement and the other to distribute each Seller’s share of such amounts received to each Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representativeon Schedule 2.2(b).
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have incur any liability to the Sellers with respect to any action taken or suffered by reason it or omitted hereunder as Sellers’ Representative while acting in good faith and in the exercise of this Agreement a fiduciary relationship reasonable judgment. Sellers’ Representative may, in respect all questions arising hereunder, rely on the advice of either Seller. 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 either Seller for any action taken anyone.
(c) A decision, act, consent or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that instruction of Sellers’ Representative shall constitute a decision, act, consent or instruction from all of the Sellers, and shall be 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 be relieved amend this Agreement or any Escrow Agreement to (i) create any personal liability of any Liability imposed 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 such affected Seller or group of the Sellers.
(e) If the Principal Seller becomes unable or no longer desires to serve as Sellers’ Representative such other Person or Persons as may be designated by Law for actual frauda majority-in-interest of the Sellers, gross negligence or willfulshall succeed as Sellers’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM M▇▇▇ ▇▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s true Representative and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for as TGS Escrow Agent to act on behalf of such Seller with respect to this Agreement and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers individually or by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under pursuant to this Agreement, including the Escrow Agreement or any other Seller Ancillary Agreement for exercise of the power to give and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including receive notices and communications in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance connection with this Agreement or and the Escrow Agreementtransactions contemplated hereby, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and take all actions on behalf of Sellers from time pursuant to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and take all action on behalf of Sellers from time to time as Sellers’ Representative may deem actions necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, appropriate in the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent judgment of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with Representative for the matters described aboveaccomplishment of the foregoing. More specifically, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that the Sellers’ Representative may lawfully do shall have the authority to make all decisions and determinations and to take all actions (including agreeing to any amendments to this Agreement or cause any Transaction Document to which it is a party or to the termination hereof or thereof) required or permitted hereunder on behalf of each such Seller, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Seller, and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Acquired Company’s Organizational Documents) to be done by virtue hereofgiven to any Seller hereunder or pursuant to any Transaction Document shall be deemed so given if given to the Sellers’ Representative. Without limiting the generality of the foregoing, the Sellers’ Representative shall be authorized, in connection with the Closing, to execute all certificates, documents and agreements on behalf of and in the name of Sellers necessary to effectuate the Closing and related transactions. The Sellers’ Representative shall be authorized to take all actions on behalf of the Sellers in connection with any claims made under Article VIII of this Agreement and any TGS Claims, to defend or settle such claims, and to make payments in respect of such claims on behalf of Sellers.
(b) No Seller shall have full power and authority the right to interpret all object to, dissent from, protest or otherwise contest any such decision or action of the terms and Sellers’ Representative. The provisions of this AgreementSection 10.01, including the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf power of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated attorney granted by this AgreementSection 10.01, the Escrow Agreement are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller, or any by operation of Law, whether by death or other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Sellerevent.
(c) The grant Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote of authority provided for in this Section 13.7 (i) is coupled with an interest and is being grantedthe holders of a majority of the Acquired Shares immediately prior to Closing; provided, however, in part, as an inducement to Buyers to enter into this Agreement and no event shall Sellers’ Representative resign or be irrevocable and survive 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, incompetencyincapacity, bankruptcy resignation or liquidation removal of either Seller and Sellers’ Representative, a new Sellers’ Representative shall be binding appointed by the vote of the holders of a majority of the Acquired Shares immediately prior to Closing. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer promptly following such vote or consent, such appointment to be effective upon the date indicated in such consent; provided, that until such notice is received, Buyer shall be entitled to rely on any successor thereto, the decisions and (iiactions of the prior Sellers’ Representative as described in Section 10.01(a) shall survive any distribution from the Escrow Agentabove.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. The Sellers’ Representative shall not be liable to either Seller the Sellers for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted fraud, intentional misconduct or bad faith (it being understood that any action taken act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative hereunder shall be conclusive evidence of good faith). The Sellers shall indemnify and hold harmless Sellers’ Representative from and against, compensate him, her or under it for, reimburse him, her or it for and pay any other document hereunderand all Losses, or arising out of and in connection therewithwith his, except her or its activities as Sellers’ Representative under this Agreement, including without limitation any travel expenses such as transportation, lodging and meals, and attorney fees incurred in connection with Sellers actions as Seller Representative, in each case as such Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Loss or any portion thereof was primarily caused by the fraud, intentional misconduct or bad faith of the Sellers’ Representative, the Sellers’ Representative shall not be relieved reimburse the Sellers the amount of any Liability imposed by Law for actual such indemnified Loss attributable to such fraud, intentional misconduct or bad faith.
(e) Upon the Closing, in accordance with Section 2.01(b)(i), Buyer shall wire to the Sellers’ Representative $1,500,000 (the “Representative Fund Amount”), which the Sellers’ Representative shall hold as agent and for the benefit of the Sellers in a segregated account (the “Representative Fund”) and shall be used for the purposes of paying directly, or reimbursing the Sellers’ Representative for, any third party expenses pursuant to this Agreement or any other Transaction Document. Sellers’ Representative will hold these funds separate from his personal funds and will not use these funds for any personal purposes. The Sellers shall not receive interest or other earnings on amounts in the Representative Fund. The Sellers acknowledge that the Sellers’ Representative is not providing any investment supervision, recommendations or advice. The Sellers’ Representative shall have no responsibility or liability for any loss of principal of the Representative Fund other than as a result of its gross negligence or willfulwillful misconduct. As soon as practicable following the later of (i) the 24-month anniversary of the Closing or (ii) the final resolution in accordance with Article VIII of any indemnification claims by any Buyer Indemnitee prior to the 24-month anniversary of the Closing, the Sellers’ Representative shall distribute the remaining Representative Fund (if any) pro rata among the Sellers in accordance with their respective Shares owned prior to Closing. For tax purposes, the Representative Fund shall be treated as having been received and voluntarily set aside by the Sellers at the time of Closing. The Parties agree that the Sellers’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund.
Appears in 1 contract
Sources: Share Exchange Agreement (Harvest Health & Recreation Inc.)
Sellers’ Representative. (a) Each Seller irrevocably constitutes Effective as of the date hereof, Mercury Fund 2 Holdco LLC hereby is constituted and appoints VPM appointed as the Sellers’ Representative. For purposes of this Agreement, the term “Sellers’ Representative” to act as such Seller’s 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 agent any other Related Agreement, with full power and authorizes 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 this Agreement, (iii) receive, give receipt and disburse any funds received hereunder or under the Paying Agent Agreement or under the Escrow Agreement on behalf of such Person 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 Buyer reasonably requests, (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 Paying Agent Agreement, Escrow Agreement or any other Related Agreement (which will be binding on all Seller Parties except as expressly set forth herein or therein), (vi) 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 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 act on its own behalf with respect to any such matters, other than any claim or dispute against the Sellers’ Representative), acting for (viii) give and receive notices on behalf of such Seller Person, (ix) do each and in such Seller’s name, place every act and stead, in exercise any and all capacitiesrights such Person is, or the Company Shareholders collectively are, permitted or required to do or exercise under this Agreement and perform every act and thing required or permitted (x) authorize the release of funds to be done with respect to all matters arising the Buyer Parties under this Agreement, the Escrow Agreement and any each other Seller Ancillary Agreement. All Related Agreement and to take all other actions or refrain from taking all other actions that may be taken by the Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes terms of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Paying Agent Agreement or any other Seller Ancillary Related Agreement;
(viii) delivering all notices required to be delivered . The Company Shareholders, by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any approving the principal terms of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without Merger and/or accepting the prior written consent of consideration payable to them hereunder, irrevocably grant unto the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent 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 matters described abovetransactions contemplated by this Agreement, as fully to all intents and purposes as such Seller the Company Shareholders might or could do in persondo; provided, hereby ratifying and confirming all however, that the Sellers’ Representative may lawfully do or cause will have no obligation to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof act on behalf of all Sellers and their successorsthe Company Shareholders. Buyers and Each of the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided Company Shareholders agrees that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) such agency is coupled with an interest interest, is therefor irrevocable without the consent of the Sellers’ Representative and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and will survive the death, incompetency, incapacity or bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulsuch Company Shareholder.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International, Inc.)
Sellers’ Representative. (a) Each Seller ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is hereby irrevocably constitutes constituted and appoints VPM appointed as “Sellers’ Representative” to act as such Seller’s the true and lawful agent and attorney-in-fact of each stockholder of the Company as of the date hereof and agent and authorizes Sellers’ Representative, acting for such Seller and immediately prior to the Effective Time (the "REPRESENTATIVE") with full powers of substitution to act in such Seller’s the -------------- name, place place, and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done stead of each such stockholder with respect to all matters arising the stockholder's performance under terms and provisions of this Agreement, the Escrow Agreement and any other Seller each Company Ancillary Agreement. All actions taken by Sellers’ Document and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are will deem necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking with any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document the transactions contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) The Representative's appointment will be deemed coupled with an interest and will be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Representative as the collective acts of each stockholder of the Company as of the date hereof and immediately prior to the Effective Time in all matters referred to in this Agreement. Each Seller grants unto said attorney-in-fact such stockholder ratifies and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with confirms all actions that the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do will take or cause to be done taken by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret Representative's appointment. On all the terms and provisions of matters set forth in this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and Representative will act for such stockholders in the manner that the Representative believes to consent be in the best interest of such stockholders, but the Representative will not be responsible to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative such stockholder for any notice contemplated loss or damage that such stockholder may suffer by reason of the Representative's performance of the Representative's duties under this Agreement, other than loss or damage arising from the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority Representative's willful misconduct in interest of Sellers, provided that notice thereof is given promptly by performing the successor Sellers’ Representative to Buyers and the Escrow Agent and to each SellerRepresentative's duties under this Agreement.
(c) The grant Each stockholder of authority provided for in this Section 13.7 (i) the Company as of the date hereof and immediately prior to the Effective Time expressly acknowledges and agrees that the Representative is coupled with an interest authorized to act on behalf of such stockholder notwithstanding any dispute or disagreement among the Company Stockholders, and is being granted, in part, as an inducement that any Person will be entitled to Buyers to enter into rely on any and all action taken by the Representative under this Agreement without liability to, or obligation to inquire of, any of such stockholders. If the Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Representative will be the Person appointed by such stockholders; provided, however, that, if for any reason no successor has been appointed -------- ------- within 30 days after the Representative ceases to function as the Representative, then any such stockholder will have the right to petition a court of competent jurisdiction for appointment of a successor Representative. Each such stockholder agrees to indemnify and shall be irrevocable hold the Representative harmless from and survive against any and all liability, loss, cost, damage, or expense (including attorneys' fees) reasonably incurred or suffered as a result of the deathRepresentative's performance of the Representative's duties under this Agreement, incompetency, bankruptcy or liquidation except in cases of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not willful misconduct. [SIGNATURE PAGES TO FOLLOW] The Parties have by reason of caused this Agreement a fiduciary relationship in respect to be duly executed as of either Sellerthe Agreement Date. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunderCONCURRENT COMPUTER CORPORATION By: --------------------------------- Name: --------------------------------- Title: -------------------------------- STREAM ACQUISITION, or in connection therewithINC. By: --------------------------------- Name: --------------------------------- Title: -------------------------------- EVERSTREAM HOLDINGS, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraudINC. By: --------------------------------- Name: --------------------------------- Title: -------------------------------- REPRESENTATIVE: --------------------------------- SELLERS: CANOE EVERSTREAM, gross negligence or willfulLLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ---------------------------- EVERSTREAM, LLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ---------------------------- --------------------------------- ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LAUDER PARTNERS LLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ----------------------------
Appears in 1 contract
Sellers’ Representative. (a) Each Seller irrevocably constitutes and appoints VPM as hereby designates ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Sellers’ Representative” to act ”) as such Seller’s true and lawful its representative, attorney-in-fact and agent with full power and authorizes authority:
(i) to execute and deliver any documents or certificates required to be delivered pursuant to this Agreement, 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 documents or certificates as the Sellers’ Representative, acting for such Seller and in such Seller’s nameits sole discretion, place and stead, in any and all capacities, to do and perform every act and thing required or permitted determines to be done desirable;
(ii) to execute and deliver such waivers and consents in connection with respect to all matters arising under this Agreement, the Escrow Agreement and any other the Seller Ancillary Expenses Escrow Agreement and the consummation of the transactions contemplated by this Agreement. All actions taken by , the Escrow Agreement and the Seller Expenses Escrow Agreement as the Sellers’ Representative hereunderRepresentative, under in its sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement, the Escrow Agreement or under the Seller Expenses Escrow Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Sellers from the Escrow Account and the Seller Expenses Escrow Account as described herein or otherwise payable to the Sellers pursuant to this Agreement, including the funds in the Escrow Account and the Seller Expenses Escrow Account and any other portion of or earnings accrued thereon which may be distributable to the Sellers, in accordance with the Escrow Agreement and the Seller Ancillary Expenses Escrow Agreement, as applicable, and, subject to any applicable withholding retention laws, to disburse and pay the same to each Seller in accordance with the terms of this Agreement, the Escrow Agreement shall be binding upon all and the Seller Expenses Escrow Agreement, as applicable;
(iv) as the Sellers’ Representative, to enforce and protect the rights and interests of the Sellers and their respective heirs, estates, executors, personal representatives to enforce and successors protect the rights and permitted assigns as if expressly confirmed and ratified in writing by each interests of them. the Sellers’ Representative shall arising out of or under or in any manner relating to this Agreement, the 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 it the Sellers’ Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other and the Seller Ancillary Expenses Escrow Agreement for and on behalf of the Sellers, as fully as if Sellers were acting on their own behalf, including:
including (ibut subject to Section 10.04 herein) receiving (A) asserting or pursuing any claim against the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement Acquiror or the Escrow AgreementCompany, as applicable;
(iiB) participating in the adjustmentdefending any Third Party Claims or claims by any Acquiror Indemnified Party, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iiiC) initiating, consenting to, compromising or settling all indemnity any such claims, (D) conducting negotiations with any Acquiror Indemnified Party or the Company and their respective Representatives regarding such claims and (E) in connection with any claim against the Acquiror or obligations the Company or taking any Third Party Claim, to (I) assert any claim or institute any action, proceeding or investigation, (II) investigate, defend, contest or litigate any Action initiated by the Acquiror or the Company or any other actions Person, or by any Governmental Authority against the Sellers’ Representative, any or all of the Sellers, the Escrow Amount or the Seller Expenses Escrow Amount and receive process on behalf of any or all of the Sellers in any such Action and all Sellers pursuant compromise or settle on such terms as the Sellers’ Representative shall determine to Article XI;
(iv) initiating or taking any action be appropriate, and give receipts, releases and discharges with respect to any suitsuch Action, action (III) file any proofs of debt, claims and petitions as the Sellers’ Representative may deem advisable or proceeding arising out of necessary and (IV) file and prosecute appeals from any decision, judgment or related award rendered in any such Action (it being understood that the Sellers’ Representative shall not have any obligation to this Agreementtake any such actions, and shall not have any liability for any failure to take any such actions);
(v) executing and performing to refrain from enforcing any right of the 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, the Seller Expenses Escrow Agreement or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Sellers’ Representative, except as otherwise provided in this Agreement, the Escrow Agreement or the Seller Ancillary Agreement Expenses Escrow Agreement, shall be deemed a waiver of any such right or interest by the Sellers’ Representative or by such Sellers unless such waiver is in accordance with its termswriting signed by the waiving party or by the Sellers’ Representative;
(vi) taking to give and receive any and all actions on behalf of notice to be given by or to the Sellers from time pursuant to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements Expenses Escrow Agreement (including, without limitation, to provide notice and engaging agents instructions to the Escrow Agent and representatives (including accountants the Seller Expenses Escrow Agent and legal counsel) to assist authorize disbursement of funds from the Escrow Account in connection herewith accordance with this Agreement and therewith;the Escrow Agreement or from the Seller Expenses Escrow Account in accordance with the Seller Expenses Escrow Agreement); and
(vii) taking to make any payments or pay any expenses under or in connection with this Agreement, the Escrow Agreement or the Seller Expenses Escrow Agreement or on behalf of the Sellers, including pursuant to Article X.
(b) The Acquiror and, subject to the terms of the Escrow Agreement, the Escrow Agent shall be entitled to rely on any and all action on behalf actions taken by the Sellers’ Representative without any liability to, or obligation to inquire of, or seek the consent of Sellers any Seller. The Sellers’ Representative shall be entitled to any such fee, commission or other compensation for the performance of his services hereunder as may be determined from time to time as by the Sellers representing a majority of the outstanding Shares immediately prior to the Closing, and neither the Acquiror nor any of its Affiliates shall be liable for the amount or payment of any such fee, commission or other compensation.
(c) In connection with this Agreement and any instrument, agreement or document relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Sellers’ Representative may deem necessary or desirable hereunder, (i) the Sellers’ Representative shall incur no responsibility whatsoever to make or enter into the Sellers by reason of any waiver, amendment, agreement, opinion, certificate error in judgment or other document contemplated 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 his duties under this Agreement, the Escrow Agreement or any other and the Seller Ancillary Expenses Escrow Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the The Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority Representative shall be entitled to do and perform each and every act and thing necessary or desirable to be done recover the amount of any expenses incurred by him in connection with the matters described above, as fully to all intents and purposes as such acceptance or administration of his duties hereunder from the Seller might or could do Expenses Escrow Account (but not solely from the Seller Expenses Escrow Account) in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled accordance with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Expenses Escrow AgentAgreement.
(d) If the individual serving as the Sellers’ Representative dies, becomes incapable of performing the responsibilities of the Sellers’ Representative hereunder or resigns, a substitute representative shall be appointed pursuant to a writing signed by the Sellers representing a majority of the outstanding Shares as of the date hereof as set forth on Section 4.02(a)(i) of the Company Disclosure Schedule (if such death, incapacity or resignation occurs prior to the Closing Date) or pursuant to a writing signed by the Sellers representing a majority of the outstanding Shares immediately prior to the Closing (if such death, incapacity or resignation occurs on or after the Closing Date). The Sellers appointing such substitute representative pursuant to the preceding sentence shall, as soon as reasonably practicable following the appointment of such substitute representative pursuant to this Section 2.09(d), inform in writing the Acquiror, the Escrow Agent and the Seller Expenses Escrow Agent of such appointment. Notwithstanding anything to the contrary contained herein, any resignation by the Sellers’ Representative shall not have by reason become effective until a new representative has been appointed in writing in accordance with this Section 2.09(d) and notice of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable such appointment has been provided to either the Acquiror, the Escrow Agent and the Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulExpenses Escrow Agent.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Party hereby irrevocably constitutes and appoints VPM as “the Sellers’ Representative” to act Representative as such Seller’s true agent and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller Party, with full power and in authority to represent such SellerSeller Party and such Seller Party’s name, place successors and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done assigns with respect to all matters arising under this Agreement, Agreement and the Indemnification Escrow Agreement and any other Seller Ancillary Agreement. All all actions taken by the Sellers’ Representative hereunder, under this Agreement or the Indemnification Escrow Agreement or under any other Seller Ancillary Agreement shall will be binding upon all Sellers each Seller Party and their respective heirs, estates, executors, personal representatives and such Seller Party’s successors and permitted assigns as if expressly ratified and confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, the Sellers’ Representative shall have has full power and authority 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 all the terms and provisions of this Agreement, (vi) take such actions required to administer the Escrow provisions this Agreement and all documents and agreements contemplated hereby, (vii) dispute or fail to dispute any Third-Party Claim or other Seller Ancillary claim under this Agreement or the Indemnification Escrow Agreement, (viii) negotiate and to consent 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 amendment such dispute, and (ix) take all actions necessary or waiver hereof or thereof on behalf appropriate in the judgment of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for the accomplishment of the foregoing. Each Seller Party will be deemed a party or a signatory to any notice contemplated by this Agreementagreement, document, instrument, or certificate for which the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest signs on behalf of Sellerssuch Seller Party; provided, provided however, that notice thereof is given promptly by the successor Sellers’ Representative will not have the power or authority to Buyers execute an Employment Agreement for, or on behalf of, any Seller Party. All decisions, actions and instructions by the Escrow Agent Sellers’ Representative will be conclusive and binding on each Seller Party and no Seller Party shall have any right to each Sellerobject, 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 instructions and decisions of the Sellers’ Representative as to any actions taken by the Sellers’ Representative 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 grant appointment of authority provided for in this Section 13.7 (i) the Sellers’ Representative is an agency coupled with an interest and is being grantedirrevocable, and any action taken by the Sellers’ Representative pursuant to the authority granted in partthis 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, as an inducement to Buyers to enter into 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 shall includes the successors to such 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 irrevocable and survive brought only by the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretoSellers’ Representative), and (ii) Purchaser shall survive have no obligation to acknowledge the rights of any distribution from Seller hereunder except through exclusive interaction with the Escrow AgentSellers’ Representative.
(d) Promptly following the release of any portion of the Indemnification Escrow Amount to the Sellers’ Representative pursuant to the 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 omissions which the Sellers’ Representative takes on behalf of the Seller Parties in accordance with the terms of this Section 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 not have by reason be entitled to rely on the advice of this Agreement a fiduciary relationship counsel, accountants or other independent experts experienced in respect the matter at issue, and any error in judgment or other act or omission of either Seller. the Sellers’ Representative pursuant to such advice shall not be liable to either Seller for any action taken or omitted by in no event subject the Sellers’ Representative hereunder to Liability to the Seller Parties.
(f) Nothing set forth in this Section 12.17 will alter or under any other document hereunderaffect, or in connection therewithbe deemed or construed to alter or affect, except that Sellers’ Representative shall not be relieved the obligation of Sellers to pay any Liability imposed by Law for actual fraud, gross negligence or willfulIndemnified 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 Seller irrevocably constitutes Concurrent with the execution and appoints VPM delivery of this Agreement, each of the Sellers shall be deemed to appoint LUK LLC as “Sellers’ Representative” to act as such Seller’s true their agent, representative and lawful attorney-in-fact and agent and authorizes (“Sellers’ Representative, acting for such Seller ”) and in such Seller’s name, place and stead, in any and all capacities, LUK LLC hereby agrees to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent The Sellers’ Representative has the full power and authority to do act on behalf of each Seller in connection with this Agreement and perform each and every act and thing the other Transaction Documents including, without limitation, the power:
(i) to take all action necessary or desirable to be done in connection with the matters described abovewaiver of any condition to the obligations of the Sellers to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, as fully 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 consummation of the transactions contemplated by this Agreement;
(iii) to terminate this Agreement if the Sellers are entitled to do so;
(iv) to give and receive all intents notices and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause communications to be done by virtue hereof. Without limiting given or received under this Agreement and to receive service of process in connection with the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of 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 any other Seller Ancillary 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 consent to do or refrain from doing any amendment further act or waiver hereof or thereof 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 Sellers and their successors. Buyers and actions necessary or appropriate in the Escrow Agent are entitled and authorized to give notices only to judgment of Sellers’ Representative for any notice contemplated the accomplishment of the foregoing. Any notices delivered by Sellers’ Representative pursuant to this Agreement, Agreement or the Escrow Agreement shall also be delivered to the addressees in Section 15.5.
(c) A decision, act, consent, or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement or any other Seller Ancillary Agreement claim, right or remedy provided hereunder, shall constitute a decision of the Sellers immediately prior to the Closing Date and shall be given final, binding and conclusive upon the Sellers immediately prior to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers 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 each Seller.
(c) The grant any Person for any acts done by them in accordance with such decision, act, consent or instruction of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow AgentSellers’ Representative.
(d) Sellers’ Representative shall not have by reason reasonable access to information about the Company and its Subsidiaries and the reasonable assistance of this Agreement a fiduciary relationship in respect their respective officers and employees for the purpose of either Seller. performing its duties and exercising its rights hereunder, provided that Sellers’ Representative shall treat confidentially and not disclose such nonpublic information from or about the Company or any Subsidiary to anyone other 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).
(e) Sellers’ Representative shall be solely responsible for disbursing to the Sellers their pro rata share of any and all amounts paid to the Sellers’ Representative on behalf of the Sellers pursuant to this Agreement. The Sellers’ Representative, acting pursuant to this Section 11, shall not be liable to either any Seller for 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 be genuine (including facsimiles thereof).
(f) The Sellers agree, severally but not jointly, to promptly indemnify the Sellers’ Representative for, and to hold the Sellers’ Representative harmless against, any and all demands, claims, actions or causes of action, suit, 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, arising out of or in connection with the Sellers’ Representative carrying out its duties under this Agreement, including any Damages incurred by the Seller’s Representative and its Affiliates pursuant to or in connection with the transactions contemplated by this Agreement, the Stockholders Agreement dated as at the date hereof among the Sellers and the Escrow Agreement and any costs and expenses of defending the Sellers’ Representative 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 from liability to the Sellers for any action taken or omitted and suffered by it in good faith and in accordance with the opinion of such counsel; provided that in no event shall a Seller’s liability under this Section 11(f), together with all other liability under this Agreement (other than such Seller’s liability under Section 5, 8.4, 8.8, 8.9 and 8.10), exceed the portion of the Purchase Price to which such Seller is entitled.
(g) The Sellers agree that LUK LLC may resign as Sellers’ Representative hereunder or under and be replaced by any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved wholly-owned Subsidiary of any Liability imposed Leucadia (as selected by Law for actual fraud, gross negligence or willfulLeucadia).
Appears in 1 contract
Sources: Stock Purchase Agreement (Broadview Networks Holdings Inc)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints VPM as “the Sellers’ Representative” to act Representative as such Seller’s true sole and lawful exclusive agent and attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller Seller, for and in on behalf of such Seller, with full power and authority to represent such Seller, such Seller’s namesuccessors and assigns, place and steadwith full power of substitution in the premises, in any and all capacities, to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All the Transaction Documents and to receive all sums payable to such Seller, and all actions taken by the Sellers’ Representative hereunder, under the Escrow this Agreement or under any other Seller Ancillary Agreement shall of the Transaction Documents will be binding upon all Sellers such Seller and their respective heirs, estates, executors, personal representatives and such Seller’s successors and permitted assigns as if expressly ratified and confirmed and ratified in writing by each such Seller. The authority conferred under this Agreement will be an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to termination by any Seller, or by operation of themlaw, whether by the death or incapacity of any Seller, the termination of any trust or estate, or the occurrence of any other event. If any Seller should die or become incapacitated, or if any other similar event should occur, any action taken by the Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, will be as fully valid as if Sellers were acting on their own behalfsuch death, including:
(i) receiving incapacity, termination or other event had not occurred, regardless of whether or not the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes had received notice of this Agreementsuch death, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiverincapacity, amendment, agreement, opinion, certificate termination or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereofevent. Without limiting the generality of the foregoing, the Sellers’ Representative shall have full power and authority authority, on behalf of each Seller and such Seller’s successors and assigns, to interpret all the terms and provisions of this Agreement, to dispute or fail to dispute any claim made under Article 6 of this Agreement or under the Escrow Transaction Documents, to negotiate and compromise any dispute that may arise under this Agreement and any other Seller Ancillary Agreement or the Transaction Documents and to consent sign any releases or other documents with respect to any amendment such dispute. Each Seller will be deemed a party or waiver hereof a signatory to any agreement, document, instrument or thereof certificate for which the Sellers’ Representative signs on behalf of all Sellers and their successors. Buyers and such Seller for which the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for had authority. In performing any notice contemplated by of its duties under this Agreement or upon the claimed failure to perform its duties under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall will not be liable to either any Seller for any action taken Adverse Consequences that any Seller may incur as a result of any good faith act or omitted any inadvertent omissions by the Sellers’ Representative hereunder or under this Agreement (in the absence of any other document hereunderwillful misconduct and/or gross negligence by the Sellers’ Representative), or in connection therewith, except that and the Sellers’ Representative shall not will be relieved of any Liability imposed indemnified and held harmless by Law the Sellers for actual fraud, gross negligence or willfulall Adverse Consequences.
Appears in 1 contract
Sellers’ Representative. (a) Each By executing this Agreement, each Seller hereby irrevocably constitutes authorizes and appoints VPM as “Sellers’ Representative” to act Representative as such SellerPerson’s true representative and lawful attorney-in-fact to act on behalf of such Person with respect to this Agreement and agent the Escrow Agreement and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in to take any and all capacities, to do actions and perform every act and thing make any decisions required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicableincluding, but not limited to, the exercise of the power to:
(i) give and receive notices and communications;
(ii) participating authorize delivery to Buyer of cash from the Escrow Account in the adjustment, objection, resolution and other processes or procedures satisfaction of any amounts owed to Buyer pursuant to (x) Section 2.03 or (y) Sellers’ indemnification obligations under this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting agree to, compromising negotiate, enter into settlements and compromises of, and comply with orders or settling all indemnity claims or obligations or taking otherwise handle any other actions on behalf of any and all Sellers pursuant to Article XImatters described in Section 2.03;
(iv) initiating or taking any action agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer;
(v) litigate, arbitrate, resolve, settle or compromise any suit, action or proceeding arising out of or related to claim for indemnification under this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any execute and deliver all actions on behalf of Sellers from time to time as Sellers’ Representative may deem documents necessary or desirable to fulfill carry out the interests and purposes intent of this Agreement, including the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewithAgreement;
(vii) taking any make all elections or decisions contemplated by this Agreement and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to be delivered by either Sellerassist Sellers’ Representative in complying with its duties and obligations; and
(ix) receiving take all notices required actions necessary or appropriate in the good faith judgment of Sellers’ Representative for the accomplishment of the foregoing. Buyer shall be entitled to deal exclusively with 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 delivered executed on behalf of any Seller by Sellers’ Representative, and on any other action taken or purported to either Sellerbe taken on behalf of any Seller 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 Sellers. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Parent 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 may take any of shall have the actions set forth in paragraphs (i) through (ix) right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 13.7(a) without Section, including the prior written consent power of the Sellers’ Representativeattorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any Person, or by operation of Law.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that The Sellers’ Representative may lawfully do or cause to resign at any time, and may be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative removed for any notice contemplated reason or no reason by this Agreement, the Escrow Agreement vote or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by written consent of a majority in interest of Sellersthe Sellers according to each Seller’s pro rata ownership interest immediately prior to Closing (the "Majority Holders"); provided, provided that notice thereof is given promptly by the successor however, in no event shall Sellers’ Representative resign or be removed without the Majority Holders 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 the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyers 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 shall be entitled to rely on the decisions and actions of the Escrow Agent and to each Sellerprior Sellers’ Representative as described in Section 10.01(a) above.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller the Sellers for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any action taken act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative hereunder or under shall be conclusive evidence of good faith). The Sellers’ shall severally and not jointly (in accordance with their pro rata ownership interest immediately prior to closing), indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any other document hereunderand all losses, or liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection therewithwith its activities as Sellers’ Representative under this Agreement and the Escrow Agreement (the "Representative Losses"), except in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, Sellers’ Representative shall not be relieved reimburse the Sellers the amount of any Liability imposed by Law for actual such indemnified Representative Loss attributable to such gross negligence, fraud, gross negligence intentional misconduct or willfulbad faith.
Appears in 1 contract
Sellers’ Representative. (a) The Sellers’ Representative is hereby approved to serve as the representative of the Sellers by 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, and without further action of any such holders, (ii) the Vista Blocker Sellers’ execution and 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 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 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 provided for herein, refrain from taking any action to treat similarly situated Sellers materially and adversely differently from one another. Each of the Sellers irrevocably constitutes and appoints VPM unconditionally agrees (x) with the calculation of the Distribution Waterfall and the allocation and distribution of proceeds pursuant thereto and (y) to reimburse the Sellers’ Representative on a pro rata basis for any fees and 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 contemplated herein. At the Closing, Purchaser shall deliver to the Sellers’ Representative an amount to be determined by the Representative, at its reasonable discretion (upon notice to Purchaser) (the “Sellers’ Representative” Representative Expense Fund”) to act as such Seller’s true be held in trust to cover and lawful attorney-in-fact reimburse the fees and agent and authorizes expenses incurred by the Sellers’ Representative, acting Representative for its obligations in connection with this Agreement and the transactions contemplated herein. Any balance of the Sellers’ Representative Expense Fund not incurred for such Seller 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. The grant of authority to the Sellers’ Representative by the Sellers is and in such Seller’s nameshall be coupled with an interest and irrevocable and shall survive the Closing, place and stead, in any and all capacities, actions taken by the Sellers’ Representative under this Agreement shall be fully binding on the Sellers. Purchaser (and after the Closing any member of the Company Group) shall have the right to do and perform every act and thing required rely upon all actions taken or permitted omitted to be done with respect taken by the Sellers’ Representative pursuant to all matters arising under this Agreement, all of which actions or omissions shall be legally binding on the Escrow Agreement Sellers and any other Seller Ancillary Agreement. All actions taken by the Unitholders.
(b) The Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers represents and their respective heirs, estates, executors, personal representatives warrants to Purchaser and successors and permitted assigns Merger Sub as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, includingfollows:
(i) receiving It is duly organized, validly existing and in good standing under the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers laws of its jurisdiction of organization. It has all requisite power and receiving on behalf of Sellers any amounts disbursed pursuant authority to the Escrow execute and deliver this Agreement and distributing such funds in accordance with perform its obligations under this Agreement or the Escrow Agreement, as applicable;.
(ii) participating in the adjustment, objection, resolution The execution and other processes or procedures pursuant to delivery by it of this Agreement and the performance by it of its obligations under this Agreement do not and will not conflict with or either Seller Ancillary Agreementviolate any provision of, including pursuant or require the consent or approval of any Person (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 Articles III or XI;which it is a party.
(iii) initiatingThe execution and delivery by it of this Agreement and the performance by it of its obligations under this Agreement have been duly authorized by all necessary corporate or other analogous action on its part. This Agreement has been duly and validly executed and delivered by the Sellers’ Representative and constitutes a legal, consenting tovalid and binding obligation of the Sellers’ Representative and, compromising or settling all indemnity claims or obligations or taking any assuming the due execution and delivery of this Agreement by the other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suitparties hereto, action or proceeding arising out of or related to this Agreement;
(v) executing and performing enforceable against the Escrow Agreement or any other Seller Ancillary Agreement Sellers’ Representative in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time , except as Sellers’ Representative such enforceability may deem necessary or desirable to fulfill the interests and purposes of this Agreementbe limited by applicable bankruptcy, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiverinsolvency, amendmentreorganization, agreement, opinion, certificate moratorium or other document contemplated under this Agreement, similar laws affecting the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any enforcement of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact creditor’s rights generally and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly limited by the successor Sellers’ Representative to Buyers availability of specific performance and the Escrow Agent and to each Seller.
other equitable remedies or applicable equitable principles (c) The grant of authority provided for whether considered in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor thereto, and (ii) shall survive any distribution from the Escrow Agent.
(d) Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, proceeding at law or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfulequity).
Appears in 1 contract
Sources: Stock Purchase and Merger Agreement (Global Payments Inc)
Sellers’ Representative. (a) Each Seller irrevocably constitutes In order to administer efficiently the obligations and appoints VPM requirements of Sellers under this Agreement, the Sellers hereby designate Robert H. Edgar as “their representative (the "Sellers Representativ▇").
(▇) The Sellers hereby authorize the Sellers Representative upon the receipt of written instructions of Requisite Sellers’ Representative” : (i) to act as such Seller’s true take all action necessary in connection with the defense and/or settlement of any claims for which the Sellers may be required to indemnify Purchasing Parties pursuant to Section 9.2 hereof, (ii) to give and lawful attorney-in-fact receive all notices required to be given and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in any and take all capacities, to do and perform every act and thing action required or permitted to be done with respect to all matters arising taken under this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderrelated agreement contemplated hereby to which all the Sellers are parties, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall (iii) to take any and all actions which it believes are necessary additional action as is contemplated to be taken by or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellersthe Sellers by the terms of this Agreement and any related agreement.
(c) Upon receiving notice of the death or incapacity of the Sellers Representative, as fully as if the Sellers were acting (who shall be deemed to include any successor in interest to any Seller) shall by a vote of the Requisite Sellers (based on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating percentage interest in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
(iv) initiating or taking any action with respect to any suit, action or proceeding arising out of or related to this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time Purchase Price if there were a Closing as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, the Escrow Agreement and the other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) to assist in connection herewith and therewith;
(vii) taking any and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (iSchedule A) through (ix) of this Section 13.7(a) without appoint a successor to fill the prior written consent vacancy. The Sellers may by a vote of the Sellers’ Representative.
(b) Each Seller grants unto said attorney-in-fact Requisite Sellers remove the Sellers Representative with or without cause and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by appoint a majority in interest of Sellerssuccessor, provided that notice thereof is given promptly by the successor Sellers’ new Sellers Representative to Buyers and each of the Escrow Agent and to each Seller.
other parties hereto. The Sellers Representative may resign (cother than by death or incompetency) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretoif, and (ii) shall survive any distribution from the Escrow Agentonly if, he is simultaneously replaced with a substitute Sellers Representative.
(d) By their execution of this Agreement, the Sellers agree that:
(i) Notwithstanding any other provision herein to the contrary, the Purchasing Parties shall be able to rely conclusively on the instructions and decisions of the Sellers Representative as to the settlement of any claims for indemnification by Purchasing Parties pursuant to Section 9.2 hereof or any other actions required to be taken by the Sellers Representative hereunder, and no party hereunder shall have any cause of action against Purchasing Parties for any action taken by Purchasing Parties in reliance upon the instructions or decisions of the Sellers Representative;
(ii) All actions, decisions and instructions of the Sellers Representative, including the defense or settlement of any claims for which the Sellers may be required to indemnify Purchasing Parties pursuant to Section 9.2 hereof, shall be conclusive and binding upon all of the Sellers’ , and no Seller shall have any right to object, dissent, protest or otherwise contest the same or have any cause of action against the Sellers Representative for any action taken, decision made or instruction given by the Sellers Representative under this Agreement, except for willful misconduct (which shall include fraud), gross negligence or breach by the Sellers Representative of his obligations as such Sellers Representative;
(iii) The provisions of this Section 1.8 are independent and severable, are irrevocable and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement;
(iv) Remedies available at law for any breach of the provisions of this Section 1.8 are inadequate; therefore, Purchasing Parties and the Sellers Representative shall not have by reason be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Purchasing Parties or the Sellers Representative brings an action to enforce the provisions of this Section 1.8; and
(v) The provisions of this Section 1.8 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Seller, and any references in this Agreement to a fiduciary relationship Seller or the Sellers shall mean and include the successors to the Sellers' rights hereunder, whether pursuant to assignment, testamentary disposition, the laws of descent, and distribution or otherwise.
(e) All fees and expenses incurred by the Sellers Representative in respect connection with this Agreement shall be paid by the Sellers in proportion to their respective percentage allocations for Common Stock specified in Schedule A as if there were a Closing.
(f) In acting as the representative of either Seller. the Sellers’ , the Sellers Representative may rely upon, and shall not be liable to either any Seller (or such Seller's successor in interest) for acting or refraining from acting upon, an opinion of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator's award, appraisal, bond or other paper or document reasonably believed by him to be genuine and to have been signed or presented by the proper party or parties. The Sellers Representative shall incur no liability to any Seller (or such Seller successor in interest) with respect to any action taken or omitted suffered by Sellers’ him in his capacity as Sellers Representative hereunder in reliance upon any note, direction, instruction, consent, statement or under other documents believed by him to be genuinely and duly authorized, nor for other action or inaction except his own willful misconduct or gross negligence and the Shareholders' Representative shall be indemnified and held harmless by the Sellers of Common Stock from all losses, costs and expenses, including reasonable attorney's fees, which the Sellers Representative may incur as a result of involvement in any other document legal proceedings arising from the performance of his or her duties hereunder, . The Sellers Representative may perform his duties as Sellers Representative either directly or in connection therewith, except that Sellers’ by or through his agents or attorneys and the Sellers Representative shall not be relieved responsible to the other Sellers for any misconduct or negligence on the part of any Liability imposed agent or attorney appointed with reasonable care by Law for actual fraud, gross negligence or willfulhim hereunder.
Appears in 1 contract
Sellers’ Representative. (a) Each Holdings Seller irrevocably constitutes is hereby constituted, authorized and appoints VPM appointed to act as the Sellers’ Representative. For purposes of this Agreement, the term “Sellers’ Representative” shall mean the representative, true, lawful and exclusive agent, proxy and attorney in fact of the Sellers for all purposes of this Agreement and the Transactions, including pursuant to the Escrow Agreement, with full power and authority to act as such on each Seller’s true behalf, including the power and lawful attorney-in-fact authority: (i) to consummate the Transactions, (ii) to pay each Seller’s expenses (whether incurred prior to, on or after the date hereof) incurred in connection with the negotiation and agent performance of this Agreement or the Escrow Agreement, (iii) to receive, give receipt and authorizes disburse any funds (including the Holdback Amount) received hereunder or under the Escrow Agreement on behalf of or to each Seller and to hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver on behalf of Sellers any documents contemplated herein or any amendment hereto or any documents contemplated in any of the Ancillary Documents (with such modifications or changes therein as to which the Sellers’ Representative, acting for such Seller in its sole discretion, shall have consented), (v) to take (or refrain from taking) all other actions to be taken by or on behalf of Sellers in connection herewith, (vi) to negotiate, settle, compromise and in such Seller’s nameotherwise handle all disputes under this Agreement or the Escrow Agreement, place including disputes regarding the Purchase Price and steadany adjustment thereto, (vii) as the Sellers’ Representative, to enforce and protect the rights and interests of Sellers and to enforce and protect the rights and interests of the Sellers’ Representative arising out of or under or in any and all capacities, manner relating to do and perform every act and thing required or permitted to be done with respect to all matters arising under this Agreement, the Escrow Agreement and any each other Seller Ancillary Agreement. All actions taken by Sellers’ Representative hereunderagreement, under the Escrow Agreement document, instrument or under any other Seller Ancillary Agreement shall be binding upon all Sellers certificate referred to herein or therein, and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall to take any and all actions which it the Sellers’ Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller the Ancillary Agreement Documents for and on behalf of Sellers, as fully as if Sellers were acting on their own behalfincluding asserting or pursuing any claim, including:
(i) receiving the Estimated Closing Date Cash Payment action, Proceeding or investigations against Buyer or any Earnout Payment of its Affiliates (including in each case after the Closing, the Company), (viii) investigate, defend, contest, litigate or appeal any adjustments thereto) from Buyers claim, action, Proceeding or investigation initiated by Buyer or any other Person, or by any Governmental Entity against the Sellers’ Representative and/or any Seller, and receiving receive process on behalf of any or all of Sellers in any amounts disbursed pursuant such claim, action, Proceeding or investigation EAST\134549672.25 83 and compromise or settle on such terms as the Sellers’ Representative shall determine to the Escrow Agreement be appropriate, and distributing give receipts, releases and discharges with respect to, any such funds in accordance with claim, action, Proceeding or investigation, (ix) to execute and deliver any consents under this Agreement or the Escrow Agreement, as applicable;
(ii) participating Ancillary Documents and to waive any term or condition in the adjustment, objection, resolution and other processes or procedures pursuant to any of this Agreement or either Seller the Ancillary AgreementDocuments, including pursuant any condition to Articles III the obligation of Sellers to consummate the Transactions or XI;
therein, (iiix) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions to give and receive notices on behalf of Sellers, (xi) to engage agents, accountants, attorneys and other representatives and (xii) to do each and every act and exercise any and all rights which any Seller is, or Sellers pursuant collectively are, permitted or required to Article XI;
(iv) initiating do or taking any action with respect to any suit, action or proceeding arising out of or related to exercise under this Agreement;
(v) executing and performing the Escrow Agreement or any other Seller the Ancillary Agreement Documents and, in accordance with its terms;
(vi) taking general, to do any and all actions on behalf of Sellers from time things and to time as take any and all action that the Sellers’ Representative Representative, in its sole and absolute discretion, may deem consider necessary or desirable proper or convenient in connection with or to fulfill carry out the interests and purposes of this AgreementTransactions, the Escrow Agreement and the all other Seller Ancillary Agreements and engaging agents and representatives (including accountants and legal counsel) agreements, documents or instruments referred to assist herein or therein or executed in connection herewith and therewith;
(vii. For the avoidance of doubt, any action permitted to be taken by the Sellers’ Representative pursuant to this Section 10.16(a) taking any is not required to be taken by Sellers’ Representative and all action on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable refrain from taking such action, except to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under the extent this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take any of the actions set forth in paragraphs (i) through (ix) of this Section 13.7(a) without the prior written consent of expressly requires the Sellers’ Representative.
(b) Representative to take a particular action. Each Seller grants Seller, by approving the principal terms of the Transactions and/or accepting the consideration payable to them hereunder or thereunder, irrevocably grant unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described aboveTransactions, as fully to all intents and purposes as such Seller Sellers might or could do in person. Each Seller agrees that such agency and proxy are coupled with an interest, hereby ratifying and confirming all that are therefore irrevocable without the consent of the Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers and the Escrow Agent are entitled and authorized to give notices only to Sellers’ Representative for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly by the successor Sellers’ Representative to Buyers and the Escrow Agent and to each Seller.
(c) The grant of authority provided for in this Section 13.7 (i) is coupled with an interest and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetencyincapacity or bankruptcy of any Seller. All of the indemnities, bankruptcy or liquidation of either Seller immunities and shall be binding on any successor thereto, and (ii) shall survive any distribution from powers granted to the Escrow Agent.
(d) Sellers’ Representative under this Agreement shall not have by reason survive the Closing Date and/or any termination of this Agreement a fiduciary relationship in respect of either Seller. Sellers’ Representative shall not be liable to either Seller for any action taken or omitted by Sellers’ Representative hereunder or under any other document hereunder, or in connection therewith, except that Sellers’ Representative shall not be relieved of any Liability imposed by Law for actual fraud, gross negligence or willfuland/or the Escrow Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Cimpress N.V.)
Sellers’ Representative. (a) Each of the Seller Parties hereby irrevocably makes, constitutes and appoints VPM ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as “Sellers’ Representative” to act as such Seller’s his, her or its exclusive agent and true and lawful attorney-in-fact and agent and authorizes Sellers’ Representative, acting for such Seller and in such Seller’s name, place and stead, in with full power of substitution to do any and all capacitiesthings and execute any and all documents which may be necessary, convenient or appropriate to do and perform every act and thing required or permitted to be done with respect to all matters arising under facilitate the consummation of the transactions contemplated by this Agreement, including but not limited to: (i) make all decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any amounts payable or distributable to the Seller hereunder; (iii) execution and delivery, on behalf of Seller Parties, of the Escrow Agreement and any other Seller Ancillary Agreement. All actions taken document required by Sellers’ Representative hereunder, under the Escrow Agreement or under any other Seller Ancillary Agreement shall be binding upon all Sellers and their respective heirs, estates, executors, personal representatives and successors and permitted assigns as if expressly confirmed and ratified in writing by each of them. Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement for and on behalf of Sellers, as fully as if Sellers were acting on their own behalf, including:
(i) receiving the Estimated Closing Date Cash Payment or any Earnout Payment (including in each case any adjustments thereto) from Buyers and receiving on behalf of Sellers any amounts disbursed pursuant to the Escrow Agreement and distributing such funds in accordance with this Agreement or the Escrow Agreement, as applicable;
(ii) participating in the adjustment, objection, resolution and other processes or procedures pursuant to this Agreement or either Seller Ancillary Agreement, including pursuant to Articles III or XI;
(iii) initiating, consenting to, compromising or settling all indemnity claims or obligations or taking any other actions on behalf of any and all Sellers pursuant to Article XI;
; (iv) initiating or taking any action with respect to any suit, action or proceeding arising out receipt of or related to this Agreement;
(v) executing payments hereunder and performing the Escrow Agreement or any other Seller Ancillary Agreement in accordance with its terms;
(vi) taking any and all actions on behalf of Sellers from time to time as Sellers’ Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement, under the Escrow Agreement and the other disbursement thereof to Seller Ancillary Agreements and engaging agents others; (v) receipt and representatives forwarding of notices and communications pursuant to this Agreement and the Escrow Agreement; (vi) administration of this Agreement and the Escrow Agreement, including accountants and legal counsel) to assist in connection herewith and therewith;
the resolution of any dispute or claim; (vii) taking the resolution, settlement, or compromise of any and all action claim for indemnification asserted against the Seller Parties pursuant to Section 5.1(a); (viii) asserting, on behalf of Sellers from time Seller Parties, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to time as Sellers’ Representative may deem necessary or desirable any amendment to make or enter into any waiver, amendment, agreement, opinion, certificate or other document contemplated under this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement;
(viii) delivering all notices required to be delivered by either Seller; and
(ix) receiving all notices required to be delivered to either Seller. No Seller may take waiver of any of its terms and conditions; and (x) take all actions necessary or appropriate in the actions set forth judgment of the Seller’s Representative for the accomplishment of the foregoing, in paragraphs (i) through (ix) of this Section 13.7(a) each case without having to seek or obtain the prior written consent of the Sellers’ RepresentativeSeller or other Person under any circumstance.
(b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that Sellers’ Representative may lawfully do or cause to be done by virtue hereof. Without limiting the generality of the foregoing, Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and any other Seller Ancillary Agreement and to consent to any amendment or waiver hereof or thereof on behalf of all Sellers and their successors. Buyers Buyer and the Escrow Agent are entitled shall be fully protected in dealing with the Seller’s Representative under this Agreement and authorized may rely upon the authority of the Seller’s Representative to give notices only act as agent of Seller Parties. Any payment by Buyer to Sellers’ the Seller’s Representative (for the benefit of Seller) under this Agreement shall be considered a payment by Buyer to Seller. The appointment of the Seller’s Representative is coupled with an interest and shall be irrevocable by Seller Parties in any manner and for any notice contemplated by this Agreement, the Escrow Agreement or any other Seller Ancillary Agreement to reason. This power of attorney shall not be given to either Seller. A successor to Sellers’ Representative may be chosen by a majority in interest of Sellers, provided that notice thereof is given promptly affected by the successor Sellers’ Representative disability or incapacity of the principal pursuant to Buyers and the Escrow Agent and to each Sellerany applicable law.
(c) The grant of authority provided for in Seller’s Representative acknowledges that the Seller’s Representative has carefully read and understands this Section 13.7 (i) is coupled with an interest Agreement, hereby accepts such appointment and is being granted, in part, as an inducement to Buyers to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of either Seller and shall be binding on any successor theretodesignation, and (ii) shall survive any distribution from represents that he will act in his capacity as Seller’s Representative in strict compliance with and conformance to the Escrow Agentprovisions of this Agreement.
(d) Sellers’ The Seller Parties agree that in the event ▇▇. ▇▇▇▇▇▇▇ or his successor refuses to serve, or is no longer capable of serving, as the Seller’s Representative, the Seller Parties shall appoint another director or executive officer of Seller to serve as the Seller’s Representative shall not have by reason a vote of this Agreement both the Board of Directors of the Seller and the holders of a fiduciary relationship in respect majority of the percentage interests of the Stockholders. Each of the Seller Parties agrees that ▇▇. ▇▇▇▇▇▇▇ or his successor may be removed from serving as the Seller’s Representative by a vote of either the Board of Directors of the Seller or the holders of a majority of the percentage interests of the Stockholders.
(e) Under no circumstances shall the Seller. Sellers’ ’s Representative shall not be liable have any liability, under any fiduciary theory or otherwise, to either the Seller Parties for any action taken act or omitted by Sellersomission to act of the Seller’s Representative in such capacity, unless the Seller Parties asserting such liability is able to prove that the Seller’s Representative was guilty of gross negligence or willful malfeasance. Each Seller Party shall, severally but not jointly and on a pro rata basis, indemnify, save and hold harmless the Seller’s Representative from and against any and all costs, losses, liabilities, obligations, Damages, law suits, deficiencies, claims, demands and expenses, including, without limitation, attorneys’ Representative hereunder or under any other document hereunderfees incurred in connection with, arising out of, resulting from, or incident to any act or omission to act of the Seller’s Representatives in connection therewithhis capacity as such, except that Sellers’ Representative shall not be relieved of any Liability imposed to the extent caused by Law for actual fraudthe willful misconduct, gross negligence or willfulbad faith of the Seller’s Representative.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mine Safety Appliances Co)