Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser. (b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person. (c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement. (d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests). (e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sources: Equity Purchase Agreement (Ryan Specialty Group Holdings, Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Sellers have appointed Hubson as the sole Sellers’ representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of any or all Sellers under this Agreement and the Escrow Agreement pursuant to that certain Contribution and Appointment Agreement entered into by and among Sellers and dated of even date herewith (the “Appointment Agreement”).
(b) If, after the dissolution, bankruptcy, insolvency, or removal, as applicable, of Sellers’ Representative, a successor Sellers’ Representative has not been appointed by Sellers within thirty (30) business days after a written request by Buyer, Buyer will have the right to appoint an independent Sellers’ Representative to fill any vacancy so created by written notice of such appointment to Sellers. Sellers may immediately remove Buyer’s appointee, and may appoint a Sellers’ Representative at any time, but such appointment shall not be effective until Buyer receives notice of such appointment in accordance with the notice requirements set forth in Section 9.5. Sellers represent and warrant that they have entered into the Appointment Agreement and that Buyer is an express third party beneficiary of the obligations of the parties under Sections 5, 7, 8 and 10 thereunder. A true and complete copy of the Appointment Agreement, as amended through the date hereof, has been made available to Buyer prior to the execution by Acquisition Co. and Buyer of this Agreement. None of Sellers shall amend, modify, waive any of its rights under Sections 5, 7, 8 or 10 of the Appointment Agreement, or terminate the Appointment Agreement without the prior written consent of Buyer.
(c) None of Buyer, Acquisition Co., Company or any of their respective Affiliates shall have any Liability to any Seller or otherwise to the extent they arise out of the acts or omissions of Sellers’ Representative or any disputes among or between Sellers or with Sellers’ Representative. Buyer, Acquisition Co., Company and their respective Affiliates shall be entitled to treat Sellers’ Representative as the duly appointed attorney-in-fact of each Seller and, in their dealings with Sellers’ Representative, may rely, without inquiry, upon any act, decision, consent or instruction of Sellers’ Representative as the act, decision, consent or instruction of any or all Sellers. Notices given to Sellers’ Representative in accordance with the provisions of this Agreement or any of the other instruments and documents contemplated hereby or executed in connection herewith (the “Ancillary Agreements”) shall constitute notice to Sellers for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions such Ancillary Agreements. Payment to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionof any amounts required to be paid by or on behalf of Acquisition Co., in connection with the termination hereof in accordance with Article VII (TerminationBuyer, Amendment and Waiver); (vi) taking Company or any and all actions that may be necessary or desirable, as determined by of their respective Affiliates to Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement shall be for the account and benefit of Sellers and no Seller shall have any right to be performed by such Seller make any claim against Acquisition Co., Buyer, Company or by any of their respective Affiliates with respect to any failure of Sellers’ Representative on behalf of to distribute such Sellerpayments to Sellers. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers hereby represents and shall have authority warrants to bind each Seller in accordance with this Agreement, Acquisition Co. and Purchaser may rely on such appointment and authority until the receipt of notice of Buyer that the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true by Sellers and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary on Sellers’ behalf pursuant to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: this Section 1.6 (i) in has been duly authorized by all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellersrequisite action, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge no other proceedings on the part of Purchaser of any Sellers is necessary to authorize such dispute appointment or disagreement; action, and (ii) does not (x) conflict with or violate the power and authority governing documents of Sellers’ Representative, as described (y) conflict with or violate any Law applicable to Sellers’ Representative; or (z) conflict with, result in any breach of, give rise to a right of termination, cause the forfeiture of any right, constitute a default (or an event that, with notice or lapse of time or both would become a default under), require any notice or consent of any person pursuant to, or otherwise violate any Contract binding upon Sellers’ Representative. For purposes of this Agreement, “Law” shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminatedmean any applicable foreign, expired federal, state or been fully performed; and local statute, law (iii) if Sellers’ Representative resigns including common law), rule, governmental or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second governmental permit, authorization, license or approval, ordinance, regulation, code, order (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Sharewhether temporary, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which hepreliminary or permanent), in his sole and absolute discretionjudgment, deems prudent injunction, writ, decree, administrative requirement or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderother restriction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) By their execution of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and Sellers hereby irrevocably appoint the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentthe representative, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done of Sellers in connection with the sale transactions contemplated by the Transaction Agreements and in any Action involving the Transaction Agreements. In connection therewith, the Sellers’ Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate, and shall have the power and authority to, in each case, in the name and on behalf of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees thatSellers: (i) in act for Sellers with regard to all matters pertaining to the Transaction Agreements; (ii) act for Sellers in which action by any Action with regard to all matters pertaining to the Transaction Agreements; (iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Sellers’ Representative is deems necessary or appropriate in connection with the consummation of the transactions contemplated by the 12 Transaction Agreements (including waiving any closing conditions on behalf of Sellers or deeming any closing condition satisfied); (iv) receive funds, make payments of funds, and give receipts for funds; (v) do or refrain from doing, on behalf of Sellers, any further act or deed that the Sellers’ Representative deems necessary or appropriate in the Sellers’ Representative’s discretion relating to the subject matter of the Transaction Agreements, in each case as fully and completely as Sellers could do if personally present; (vi) give and receive all notices required to be given or permittedreceived by Sellers under the Transaction Agreements; (vii) agree to, negotiate and/or comply with the determination of the Closing Date Statement and the Adjustment Amount pursuant to Section 2.6; (viii) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court orders with respect to claims made by the Acquiror under Article VII; and (ix) receive service of process in connection with any Actions under the Transaction Agreements.
(b) The Sellers’ Representative shall act for the Sellers on all of the matters set forth in the Transaction Agreements in the manner the Sellers’ Representative believes to be in the best interest of the Sellers. The Sellers’ Representative is authorized to act on behalf of such Seller, the Sellers notwithstanding any dispute or disagreement among the Sellers. In taking any action as the Sellers’ Representative, and Purchaser the Sellers’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Sellers’ Representative reasonably believes to be authorized thereunto.
(c) For all purposes of this Agreement: (i) the Acquiror shall be entitled to rely conclusively, without any further inquiry or investigation, on the instructions and decisions of the Sellers’ Representative as to the settlement of any disputes or claims under the Transaction Agreements, or any other actions required or permitted to be taken by the Sellers’ Representative hereunder, and all no party shall have any cause of action against the Acquiror for any action taken by Sellers’ Representative under this Agreement without any liability to, the Acquiror in reliance upon the instructions or obligation to inquire of, any decisions of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement’ Representative; (ii) the power provisions of this Section 2.7(c)(ii) are independent and authority of Sellers’ Representativeseverable, as described are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and 13 (iii) if Sellers’ Representative resigns or is removed or otherwise ceases this Section 2.7(c)(iii) shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, assignees and successors of each Seller, and any references in this Agreement to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller shall mean and include the successors to act as Sellers’ Representativethe rights of each applicable Seller hereunder, whether pursuant to serve as described in this Agreementtestamentary disposition, the Laws of descent and distribution or otherwise.
(d) All payments to or by Each of the Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall not be entitled to retain liable for any damages while acting in good faith and not distribute to in the Sellers at the Closing One Million Dollars ($1,000,000) exercise of the Purchase Price to establish a reserve to be held by the Sellers’ Representative its reasonable judgment and used for the non-exclusive purposes arising out of funding any expenses of Sellers’ Representative arising or in connection with the acceptance or administration of his its duties pursuant to under this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.Article III
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this AgreementAppointment. The Sellers’ Representative shall have full power and authority on behalf of the sole Sellers to take all actions under this Agreement and absolute discretion any other agreement entered into or document delivered in connection with the transactions contemplated by this Agreement that are to determine the use of such funds. Any portion of such funds that have not been used be taken by the Sellers’ Representative. The Sellers’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, including giving and receiving any notice or instruction permitted or required under this Agreement by the second (2nd) anniversary Sellers’ Representative, interpreting all of the Closing Date shall terms and provisions of this Agreement, authorizing payments to be distributed 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 actions specified in or contemplated by this Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters.
(b) Authorization. Prior to the Sellers in accordance with their Pro Rata ShareClosing, provided that the Company, and after the Closing, the Sellers, hereby authorize the Sellers’ Representative shall to:
(i) receive all notices or documents given or to be entitled given to continue the Sellers pursuant hereto or in connection herewith or therewith and to hold receive and not distribute accept services of legal process in connection with any funds which hesuit 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 in his sole discretion deem necessary or appropriate; and
(iii) take such action as the Sellers’ Representative may, in his sole and absolute discretion, deems prudent deem necessary or appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Purchaser contained in this Agreement or in any document delivered by Purchaser pursuant hereto; (B) taking such other action as the Sellers’ Representative 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 for payment to carry out the responsibilities of anticipated expenses associated with the discharge Sellers’ Representative contemplated by this Agreement or document or agreement contemplated hereby, including any waiver of his duties hereunderany obligation of Purchaser.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints From and after the date hereof, Sellers’ Representative will act as the representative of Sellers, and will be authorized to act on behalf of Sellers and to take any and all actions required or permitted to be taken by Sellers under this Agreement and any other transaction document in connection with the Agreement, including, without limitation, any actions with respect to: (i) any claims for indemnification pursuant to Article 9; (ii) any amendments to this Agreement; and (iii) any other actions to be taken by Sellers’ Representative pursuant to the terms of this Agreement or any other transaction document in connection with the Agreement. The execution of this Agreement by S▇▇▇▇▇▇ (including pursuant to execution of the Letter of Transmittal) will constitute approval of the appointment of Sellers’ Representative and all actions of Sellers’ Representative pursuant to this Agreement and any other transaction document in connection with the Agreement. In all matters relating to Article 9 and where Sellers’ obligations are joint and several, Sellers’ Representative will be the only Party entitled to assert the rights of Sellers.
(b) Sellers will be bound by all actions or inactions taken by Sellers’ Representative in his, her or its capacity thereof. Sellers’ Representative will, at all times, act in his, her or its capacity as Sellers’ Representative in a manner that Sellers’ Representative reasonably believes to be in the best interest of S▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by . Neither Sellers’ Representative in his sole discretionnor any of its directors, in connection with the termination hereof in accordance with Article VII (Terminationmanagers, Amendment and Waiver); (vi) taking officers, agents or employees, if any, will be liable to any and all actions that may be necessary Seller for any error of judgment, or desirableany action taken, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary suffered or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing omitted to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, taken under this Agreement or any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, other transaction document in connection with this Agreement, except in the Ancillary Agreements and the Transactions; (xi) granting any consent case of its bad faith, Fraud, or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by willful misconduct. Sellers’ Representative on behalf may consult with legal counsel, independent public accountants and other experts selected by it, the reasonable fees and expenses of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to which advisors will be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personpaid by S▇▇▇▇▇▇.
(c) Sellers, jointly and severally, will indemnify and hold harmless and reimburse Sellers’ Representative from and against any and all Losses suffered or incurred by Sellers’ Representative arising out of or resulting from any action taken or omitted to be taken by Sellers’ Representative under this Agreement or any other transaction document in connection with this Agreement, other than such Losses arising out of or resulting from Sellers’ Representative’s bad faith, Fraud, or willful misconduct.
(d) Each Seller hereby agrees that: to the following:
(i) in In all matters in which action by a Seller and/or Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers or between any Seller and Sellers’ Representative, and Purchaser shall Buyer, Merger Sub the SPAC and their Affiliates and representatives will be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement or any other transaction document in connection with this Agreement, without any liability to, or obligation to inquire of, any of the SellersSeller, notwithstanding any knowledge on the part of Purchaser Buyer, Merger Sub the SPAC or their Affiliates or representatives of any such dispute or disagreement; .
(ii) Delivery of all documents, agreements, disclosure schedules and other information required to be delivered to Sellers under this Agreement may be made to Sellers’ Representative on behalf of Sellers and upon delivery to Sellers’ Representative will be deemed delivered to all Sellers for purposes of this Agreement.
(iii) Notice to Sellers’ Representative, delivered in the manner provided in Section 10.2, will be deemed to be notice to all Sellers for purposes of this Agreement.
(iv) The power and authority of Sellers’ Representative, as described in this Agreement, shall will continue in full force and effect until all rights and obligations of Sellers under this Agreement shall or any other transaction document in connection with the Agreement have terminated, expired or been fully performed; and .
(iiiv) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty A majority-in-interest of Sellers (30based on their Pro Rata Shares) days, Sellers shall will have the right right, exercisable from time to appoint a Seller time upon written notice delivered to act as Sellers’ Representative, Buyer and the SPAC, to serve as described appoint a Person (or, in this Agreement.
(dthe case of a Seller that is a corporation, partnership, limited liability company or trust, an officer, manager, employee or partner of such Seller) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish fill a reserve to be held vacancy caused by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses death, or resignation of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderRepresentative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints appoints, authorizes and empowers ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as to be the sole representative (exclusive proxy, representative, agent and attorney-in-fact of each of the “Sellers’ Representative”) , with full power of such Seller substitution, to make all decisions and determinations and to act as the agent and execute, deliver and receive all documents, instruments and consents on behalf of such Seller for all purposes under the Sellers, at any time, in connection with, and that may be deemed by the Sellers’ Representative to be necessary or appropriate to accomplish the intent and implement the provisions of, this Agreement, including for and to facilitate the purposes ofconsummation of the transactions contemplated hereby. By executing this Agreement, the Sellers’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Sellers’ Representative shall have the power to take any of the following actions on behalf of the Sellers: (i) acceptance of any payments hereunder or to give and receive notices, communications and consents under this Agreement and any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewithDocuments; (ii) review to receive and facilitate distribution of the Statementpayments pursuant to this Agreement and any Ancillary Documents; (iii) delivering to waive, modify or amend any funds hereunder or under provision of this Agreement and any Ancillary AgreementDocuments; (iv) determining whether to assert any claim or institute any Action; (v) to investigate, defend, contest or litigate any Action initiated by any Person against the conditions to closing in Article VI (Conditions Precedent) have been satisfied Sellers’ Representative or any Seller under this Agreement and supervising any Ancillary Documents, as the Closing, including waiving any such condition if Sellers’ Representative, in his or her sole discretion, determines that such waiver is appropriate; (v) taking any action that may be deem necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking to receive process on behalf of any and all actions that may be necessary or desirable, as determined by Sellers’ Representative Seller in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers)any such Action; (vii) accepting notices on behalf to negotiate, enter into settlements and compromises of, resolve and comply with orders of such Seller courts and awards of arbitrators or other third party intermediaries with respect to any disputes arising under this Agreement and any Ancillary Documents, as the Sellers’ Representative, in accordance with Section 9,04 (Notices)his or her sole discretion, may deem necessary or desirable; (viii) taking to negotiate and enter into settlements with respect to any indemnification claims arising under this Agreement and all actions that any Ancillary Documents, as the Sellers’ Representative, in his or her sole discretion, may be deem necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering to agree to any offsets or causing other additions or subtractions of amounts to be delivered to Purchaser at paid under this Agreement and any Ancillary Documents as the Closing certificates representing the Equity Interests to be sold by such Seller hereunderSellers’ Representative, in his or her sole discretion, may deem necessary or desirable; (x) executing to make, execute, acknowledge and deliveringdeliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, assignments, letters and other writings, (xi) engage, at the Sellers’ expense, attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing, and, in Sellers’ Representative’s capacity as the representative of such Sellergeneral, to do any and all notices, documents or certificates things and to be executed by take any and all action that the Sellers’ Representative, on behalf of such Sellerin his or her sole and absolute discretion, may consider necessary or proper or convenient in connection with this Agreement, or to carry out the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as activities described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sources: Stock Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Sellers’ Representative. (a) Each The Seller Parties hereby appoints irrevocably nominate, constitute and appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as and the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentof the Seller Parties (the “Sellers’ Representative”), with full power of substitution and resubstitutionsubstitution, to act in such Seller’s the name, place and steadstead of the Seller Parties for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in any and its sole discretion, determine to be necessary, desirable or appropriate in all capacitiesmatters relating to or arising out of this Agreement, including in connection with (i) any adjustment to the TransactionsBase Amount as contemplated by Section 3.2, granting unto said (ii) any determination of the Final Working Capital pursuant to Section 3.3, (iii) any Tax matters as described in Section 6.11 or (iii) any claim for indemnification, compensation or reimbursement under Article X (the “Representative Matters”). ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ hereby accepts his appointment as the representative and the agent and true and lawful attorney-in-fact and agent full power and authority of the Seller Parties. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall serve as Sellers’ Representative until the earlier of his death, incapacity, or his removal by the written action of a majority of the Party Stockholders. Following the removal of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Sellers’ Representative, or his inability to do and perform each and every act and thing requisite and necessary serve in such capacity, a replacement Sellers’ Representative shall be appointed by the written action of a majority of the Party Stockholders.
(b) Upon the Closing, the Seller Parties shall deliver to the Sellers’ Representative an amount equal to $40,000 (the “Representative’s Expense Fund”) to be done held in trust to cover and reimburse the fees and expenses incurred by the Sellers’ Representative for his obligations in connection with the sale of such Seller’s Equity Interests this Agreement and the other Transactions as fully transactions contemplated herein. Any balance of the Representative Expense Fund not incurred for such purposes shall be returned by the Sellers’ Representative to all intents and purposes as such the Seller might or could do in personParties.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Party grants to the Sellers’ Representative is required full authority to execute, deliver, acknowledge, certify and file on behalf of the Seller Parties (in the name of any or permitted, all of the Seller Parties or otherwise) any and all documents that the Sellers’ Representative is authorized may, in his sole discretion, determine to act on behalf of be necessary, desirable or appropriate, in such Seller, notwithstanding any dispute or disagreement among forms and containing such provisions as the Sellers’ Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 11.17(a). Notwithstanding anything to the contrary contained in this Agreement, in any Seller Ancillary Document or in any Purchaser Ancillary Document executed in connection with the Acquisition and the transactions contemplated this Agreement, the Purchaser shall be entitled to rely on any and all action taken by deal exclusively with the Sellers’ Representative under this Agreement on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any liability to, kind whatsoever) on any document executed or obligation purported to inquire of, be executed on behalf of any of Seller Party by the Sellers’ Representative with respect to any Representative Matters, notwithstanding and on any knowledge other action taken or purported to be taken on the part of Purchaser behalf of any Seller Party by the Sellers’ Representative with respect to any Representative Matters, as fully binding upon such dispute or disagreementSeller Party.
(d) The power of attorney granted in Section 11.17(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns shall survive the dissolution, death or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have incapacity of each of the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)Parties.
(e) The Sellers agree that All expenses incurred by the Sellers’ Representative in connection with the performance of his duties as the Sellers’ Representative shall be entitled to retain borne and not distribute to paid exclusively by the Sellers Seller Parties.
(f) The Sellers’ Representative shall at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish all times act in his capacity as Sellers’ Representative in a reserve to be held by manner that the Sellers’ Representative and used for believes to be in the non-exclusive purposes best interest of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this AgreementSeller Parties. The Sellers’ Representative shall have not be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the sole case of its gross negligence, bad faith or willful misconduct. The Sellers’ Representative may consult with legal counsel, independent public accountants and absolute discretion to determine other experts selected by him. Each Seller Party shall indemnify and hold harmless and reimburse the use of such funds. Any portion of such funds that have not been used Sellers’ Representative from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Sellers’ Representative arising out of or resulting from any action taken or omitted to be taken by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which heunder this Agreement, in his sole and absolute discretionother than such liabilities, deems prudent losses, damages, claims, costs or necessary for payment expenses arising out of anticipated expenses associated with or resulting from the discharge of his duties hereunderSellers’ Representative's gross negligence, bad faith or willful misconduct.
Appears in 1 contract
Sellers’ Representative. (a) Each By virtue of the execution of this Agreement and receiving the consideration payable hereunder, each Seller hereby irrevocably agrees, constitutes and appoints the Sellers’ Representative (and by the execution of this Agreement as Sellers’ representatives as of the date hereof, the Sellers’ Representative ▇▇▇▇▇▇ accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact of each of the Sellers, (i) to act as a Seller’s Representative under this Agreement and each of the instruments and agreements contemplated hereby to which it is party and to have the right, power and authority to perform all actions (or refrain from taking any actions) the Sellers’ Representative shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement and such instruments and agreements contemplated hereby; (ii) to act in the name, place and stead of each Seller (A) in connection with the transactions contemplated hereunder, in accordance with the terms and provisions of this Agreement and all instruments and agreements contemplated hereby, and (B) in any proceeding involving this Agreement and/or instrument and agreement contemplated hereby; (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereunder; (iv) to receive all notices or other documents given or to be given to the Sellers by or on behalf of Purchaser pursuant to this Agreement and all instruments and agreements contemplated hereby; (v) negotiate, undertake, compromise, defend, resolve and settle any suit, proceeding, claim or dispute under this Agreement and all instruments and agreements contemplated hereby on behalf of the Sellers, including with respect to any indemnification matters; (vi) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated hereunder; (vii) receive service of process on behalf of any Seller in connection with any claims under this Agreement; (viii) agree, after having obtained the agreement of IDInvest (which shall not be unreasonably withheld or delayed), to any modification, supplement or amendment of, or waiver under, this Agreement and all instruments and agreements contemplated hereby and execute and deliver an agreement of such modification, supplement, amendment or waiver; (ix) agree to the release of any amount from the Escrow Amount; and (x) take all such other actions as the Sellers’ Representative may deem necessary, appropriate or advisable to carry out the intents and purposes of this Section 9.8. This power of attorney is coupled with an interest and is irrevocable. All actions, decisions and instructions of the Sellers’ Representative shall be conclusive and binding upon all of the Sellers. Each of the Sellers 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 Seller shall be bound by such documents as fully as if such Seller had executed and delivered such documents. The provisions of this Section 9.8(a) shall apply, mutatis mutandis, to any action that the Company performs on behalf of or with respect to the Sellers pursuant to the terms hereof, including the control, defense and settlement of any Third Party Claim.
(b) The Sellers’ Representative may be removed or replaced only upon delivery of written notice to the Company and the Purchaser by the Majority Sellers. The Sellers’ Representative may resign at any time upon a thirty (30) days’ prior written notice of such decision to resign and in the event of such resignation the Majority Sellers shall promptly appoint a successor ▇▇▇▇▇▇▇ as the sole representative (the “Sellers▇’ Representative”) of such Seller to act as . Purchaser, the agent Paying Agent, the Escrow Agent and on behalf of such Seller for all purposes under this Agreementany other Person may conclusively and absolutely rely, including for the purposes of: (i) acceptance of without inquiry, upon any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review action of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary matters referred to herein. Any notice or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary communication given or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreementreceived by, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentany decision, with full power of substitution and resubstitutionaction, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized failure to act on behalf within a designated period of such Sellertime, notwithstanding any dispute agreement, consent, settlement, resolution or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire instruction of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled constitute a notice or communication to retain and not distribute or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Sellers at and shall be final, binding and conclusive upon the Closing One Million Dollars ($1,000,000) Sellers. As between the Sellers and the Sellers’ Representative, the Sellers’ Representative will incur no liability of the Purchase Price any kind with respect to establish a reserve to be held any action or omission by the Sellers’ Representative pursuant to this Agreement and used for the non-exclusive purposes agreements ancillary hereto, except in the event of funding any expenses of liability directly resulting from the Sellers’ Representative’s gross negligence or willful misconduct. The Sellers, severally and not jointly, will indemnify, defend and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, actions, fees, costs and expenses (including the fees and expenses of counsel and experts) (collectively, “Representative Losses”) arising out of or in connection with the administration Sellers’ Representative’s execution and performance of his duties pursuant this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the 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 willful misconduct. 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. The In all questions arising under this Agreement, the Sellers’ Representative shall have may rely on the sole advice of counsel, and absolute discretion the Sellers’ Representative will not be liable to determine the use of such funds. Any portion of such funds that have not been used Sellers for anything done, omitted or suffered by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderbased on such advice.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller of the Sellers (other than the ESOP) hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative ▇. ▇▇▇▇▇▇ (the “"Sellers’ ' Representative”") of such Seller to act as the agent his, her or its agent, proxy and on behalf of such Seller attorney-in-fact for all purposes under this Agreement, including and each such Seller authorizes the Sellers' Representative to do any and all of the following for the purposes ofsuch Seller and in such Seller's name and stead: (i) acceptance of to execute, acknowledge, as appropriate, and deliver to the Buyer any payments hereunder certificate, document or under any Ancillary agreement referred to herein or contemplated hereby (other than the Restricted Shares Agreement and delivery of wire instructions to Purchaser in connection therewithwhich such Seller is a party, if any); (ii) review of to accept, receipt for and deposit any funds or other amounts owing to the StatementSellers (other than the ESOP) hereunder; (iii) delivering to represent, negotiate on behalf of and bind the Sellers (other than the ESOP) in connection with the determination of the purchase price adjustment amount pursuant to Section 1.4, any funds hereunder negotiations or agreements with the Buyer with respect to the purchase price adjustment under Section 1.4, and any Ancillary Agreementpresentation to or discussions with the Independent Accountant with respect thereto; (iv) determining whether to pay the conditions purchase price adjustment amount, if any, due from the Sellers (other than the ESOP) to closing the Buyer in Article VI (Conditions Precedent) have been satisfied and supervising accordance with Section 1.4, subject to the Closing, including waiving any individual Sellers' prior payment or prompt reimbursement of such condition if amount to the Sellers’ ' Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirableto represent, as determined by Sellers’ Representative in his sole discretion, negotiate on behalf of and bind the Sellers (other than the ESOP) in connection with the termination hereof in accordance determination of any indemnification claims under this Agreement or any of the Ancillary Agreements or any negotiations or agreements with Article VII the Buyer with respect to indemnification, and to make any indemnification payments under this Agreement or any of the Ancillary Agreements on behalf of the Sellers (Termination, Amendment and Waiverother than the ESOP); (vi) taking on behalf of the Sellers (other than the ESOP), to execute, acknowledge, as appropriate, and deliver such modifications and amendments to this Agreement or any of the Ancillary Agreements as the Sellers' Representative shall deem advisable in his discretion; and (vii) to do any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments other acts and Waivers); (vii) accepting notices things on behalf of such Seller in accordance with Section 9,04 the Sellers (Notices); (viiiother than the ESOP) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, Agreement or any of the Ancillary Agreements as the Sellers' Representative shall deem advisable in his discretion. The agency created hereby shall be deemed irrevocable and coupled with an interest. The Buyer shall be entitled to rely upon the Transactions; (xi) granting powers granted herein with respect to any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by matter relating to this Agreement or any of the Ancillary Agreement Agreements, and any question which may arise concerning the power or authority of the Sellers' Representative to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller (other than the ESOP) shall be interpreted and construed in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice favor of the appointment authority of a successor upon five (5) Business Days’ prior written notice to Purchaserthe Sellers' Representative.
(b) Each The Sellers' Representative shall not be liable to any Seller with respect to any actions taken (other than Sellers’ Representativeor not taken) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ ' Representative in the performance of his duties under this Agreement without and any liability toother document or agreement referred to herein or contemplated hereby, except to the extent that such actions were taken (or obligation to inquire of, any not taken) as a result of the intentional misconduct of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ ' Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edo Corp)
Sellers’ Representative. (a) Each Seller hereby exclusively and irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole its representative with full authority and power without limitation to execute all instruments (the “Sellers’ Representative”) of other than any Assignment or any certificate required pursuant to Section 4.1(c)), to perform all covenants and obligations, to grant such Seller to act as the agent waivers and consents on behalf of such Seller under this Agreement, to exercise all rights on such Seller’s behalf in connection with the performance of this Agreement and to amend this Agreement except to the extent such amendment would decrease the Purchase Price or adversely and disproportionately affect such Seller without such Seller’s consent, in each case, as Seller’s Representative in its sole discretion shall deem advisable, both prior to and after Closing.
(b) ▇▇ ▇▇▇ in its capacity as representative appointed under Section 15.7(a) is “Seller’s Representative.”
(c) Without in any way limiting the authority and power set forth in Sections 15.7(a), each Seller irrevocably appoints the Seller’s Representative the agent and attorney-in-fact of such Seller for the purposes of acting in the name and stead of such Seller in: (i) giving and receiving all notices permitted or required by this Agreement and acting on behalf of such Sellers for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review dealing with Buyer in connection with any and all adjustments to the Purchase Price under this Agreement (including negotiating and settling any dispute regarding any such adjustments on behalf of the Statementsuch Sellers); (iii) delivering any funds hereunder or acting on such Seller’s behalf under any Ancillary covenant, agreement or provision of this Agreement; (iv) determining whether the conditions agreeing with Buyer as to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingany amendments to this Agreement or waivers of any terms of this Agreement which Seller’s Representative may reasonably deem necessary or advisable, including waiving the extension of time in which to consummate the transactions contemplated by this Agreement, and the waiver of any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriateclosing conditions; (v) taking employing legal counsel; (vi) paying any action that may be necessary or desirablelegal and any other fees, as determined by Sellers’ Representative in his sole discretion, costs and expenses incurred in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined transactions contemplated by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers)this Agreement; (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; (viii) determining whether the conditions to Closing in Article V have been satisfied and supervising the Closing, including waiving any such condition if Seller’s Representative, in its sole discretion, determine that such waiver is appropriate; (ix) taking any action that may be necessary or desirable, as determined by Seller’s Representative in its sole discretion, in connection with the termination of this Agreement in accordance with Article VII; (x) serving as payment agent for Sellers and otherwise making the determinations referenced by Section 2.4 in accordance with Section 2.4, including directing the timing, making and manner of payment of the Purchase Price (as adjusted pursuant to this Agreement) hereunder equitably among the Sellers in accordance with this Agreement as contemplated by Section 2.4; (xi) dealing with Buyer in connection with the determination, dispute, negotiation and settlement of any Title Defects or Environmental Defects; and (xii) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking any all actions which Seller’s Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement, as fully as if such Sellers were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other actions parties to this Agreement, and doing any in consideration of those interests and for the purpose of completing the transactions contemplated hereby, this power of attorney and all other things provided in or contemplated authority conferred hereby shall be irrevocable and shall not be terminated by this Agreement or any Ancillary Agreement to be performed by such Seller the Sellers or by Sellers’ Representative on behalf operation of such SellerLaw, whether by the incapacity of any of the Sellers or by the occurrence of any other event. As the representative of the Sellers, Sellers’ Seller’s Representative shall act as the agent for all Sellers and such Persons, shall have authority to bind each Seller such Person in accordance with this Agreement, and Purchaser may rely on such appointment Buyer shall be fully protected in relying conclusively without any investigation upon any notices, instruction, dealings, and authority until actions of Seller’s Representative within the receipt scope of notice this Section 15.7 and the power of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaserattorney contained herein.
(bd) Each Seller (other than Sellers’ Representative) hereby exclusively and irrevocably appoints Sellers’ Representative as such the Seller’s true and lawful attorney-in-fact and agentRepresentative, acting jointly, with full authority and power of substitution to execute the Escrow Agreement, to perform all covenants and resubstitutionobligations under the Escrow Agreement, in such Seller’s nameto execute joint written instructions to the Escrow Agent under the Escrow Agreement, place to grant waivers and steadconsents under the Escrow Agreement, in any and to exercise all capacities, rights in connection with the Transactionsperformance of the Escrow Agreement and to amend the Escrow Agreement, granting unto said attorney-in-fact and agent full power and authority to do and perform in each and every act and thing requisite and necessary to be done in connection with case, as the sale of such Seller’s Equity Interests and Representative in its sole discretion shall deem advisable, during the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) term of the Escrow Agreement. Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, that Buyer and Purchaser Escrow Agent shall be entitled to rely on this granting of power of attorney in all respects.
(e) Notwithstanding anything to the contrary herein, the Seller’s Representative shall not owe any fiduciary duties to the Sellers and shall not have any Liability of any kind whatsoever to the Sellers arising hereunder or in any way related to any of the transactions contemplated hereby, including for any action taken, or omission made, by Seller’s Representative while acting in good faith in the absence of bad faith or willful misconduct and each Seller hereby irrevocably and unconditionally forever releases Seller’s Representative from any and all action taken by Sellers’ Representative under this Agreement without Liability of any liability to, kind whatsoever arising hereunder or obligation in any way related to inquire of, any of the Sellerstransactions contemplated hereby, notwithstanding including for any knowledge on action taken, or omission made, by the part Seller’s Representative while acting in good faith, except (and only to the extent) of Purchaser of any such dispute bad faith or disagreement; (ii) the power and authority of Sellers’ willful misconduct by Seller’s Representative. The Seller’s Representative may, as described in all matters arising in connection with this Agreement, rely on the advice of counsel and the Seller’s Representative shall continue not be liable to the Sellers for anything done, omitted, or suffered in full force good faith based on such advice in the absence of bad faith or willful misconduct by the Seller’s Representative. The Seller’s Representative undertakes to perform such duties herein and effect until all rights and obligations of Sellers under only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall have terminatedbe read into this Agreement against the Seller’s Representative.
(f) Buyer, expired or been fully performed; the Escrow Agent and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers all other Persons shall have the right to appoint rely upon all actions taken or omitted to be taken by Seller’s Representative pursuant to this Agreement. Notwithstanding anything herein to the contrary, Sellers do hereby agree that Buyer Indemnified Parties shall have no Liability to any Seller or Seller’s Representative as a result of any action or inaction by Seller’s Representative in the performance of this Agreement or any action or inaction of any Buyer Indemnified Party at the request or instruction of Seller’s Representative related to this Agreement, and Sellers do hereby agree to defend, indemnify, hold harmless and forever release Buyer Indemnified Parties from any such Liability, including for the avoidance of doubt, any distribution of any portion of the Adjusted Purchase Price paid to the Seller’s Representative.
(g) The authorizations of the Seller’s Representative under this Section 15.7 shall be effective until its rights and obligations under this Agreement terminate by virtue of the termination of all obligations of each Seller to act as Sellers’ Representative, to serve as described in under this Agreement.
(dh) All payments to or by Sellers under this Agreement shall be made Without in proportion any way limiting the authority and power granted to the Pro Rata Share of SellersSeller’s Representative hereunder, the Seller’s Representative is expressly authorized to withhold (and each Seller agrees otherwise make provision for) any amounts that they determine in their sole discretion as being sufficient to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and (i) satisfy any anticipated or potential downward adjustments to the payment to which Purchase Price, it is entitled in respect of its Equity Interests (notwithstanding anything in being understood that any organizational document of All Risks or ICS or any other Contract related to amounts so withheld for such purpose that are remaining after the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Final Payment Date shall will be distributed to the Sellers in accordance with their Pro Rata ShareSection 2.4 promptly after the Final Payment Date, provided and (ii) to satisfy any anticipated or potential liabilities or other obligations potentially arising hereunder affecting any Sellers in the group of Sellers which it represents hereunder, if and to the extent that Seller’s Representative determines in its sole discretion acting reasonably and in good faith that such is in the collective best interest of Sellers’ , it being understood that any such remaining amounts so withheld will be distributed to the Sellers in accordance with Section 2.4 promptly after Seller’s Representative shall be entitled to continue to hold determines in its sole discretion acting reasonably and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment good faith that such distribution is in the collective best interest of anticipated expenses associated with the discharge of his duties hereunderSellers.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as authorizes and directs the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionas its agent, in connection with proxy, attorney-in-fact and representative under the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of Transaction Documents to take such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, action on behalf of such Seller, in connection with and to exercise such rights, power and authority, as are authorized, delegated and granted to the Sellers’ Representative pursuant to this Agreement, including, without limiting the Ancillary Agreements generality of the foregoing, (i) execution, delivery and receipt of the Transactions; Escrow Agreement, (xiii) granting any consent or approval preparation and delivery of the certificate pursuant to Section 4.1(a)(iii) hereof, (iii) the right to receive notices and other documentation, pursuant to the terms of this Agreement, on behalf of such Seller under this Agreement; the Sellers, (iv) amending and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by waiving the terms of this Agreement or pursuant to Section 9.9 hereof, but excluding, without the prior consent of all Sellers, any Ancillary Agreement to change that would be performed by such Seller or by Sellers’ Representative inconsistent with the LLC Agreement, (v) receipt of the Purchase Price and amounts, if any, in the Escrow Account, on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as pursuant to Sections 2.1(b) and 2.2 and distribution thereof to the agent for all Sellers and shall have authority to bind each Seller in accordance with Section 8.5, (vi) termination of the Agreement pursuant to Section 6.1 hereof, (vii) settlement of any claims for which the Sellers may be required to indemnify or pay to, or entitled to indemnification or payment from, Buyer pursuant to this Agreement, and Purchaser may rely on such appointment and authority until the receipt (viii) any other actions contemplated by or in furtherance of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaserthis Agreement.
(b) Each Seller agrees that (other than i) the Sellers’ Representative shall not be liable for any actions taken or omitted 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) hereby appoints 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 true Pro Rata Portion, shall defend, indemnify and lawful attorney-in-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 and agent, with full power that such Person is or was a Sellers’ Representative hereunder or arising out of substitution and resubstitution, acts or omissions of such Person in such Seller’s name, place capacity (including in respect of acts or omissions in connection with this Agreement and steadthe transactions contemplated hereby) except for, in any and all capacitiescase, in connection with acts or omissions which involve conduct known to such Person at the Transactions, granting unto said attorney-in-fact and agent full power and authority time to do and perform each and every act and thing requisite and necessary to be done in connection with the sale constitute a material violation of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personLaw.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser Buyer shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge conclusively on the part instructions and actions of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve required or permitted to be held taken by the Sellers’ Representative under any Transaction Document, and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative no Seller shall have any cause of action against Buyer or its Affiliates for any action taken by Buyer in reliance upon the sole and absolute discretion to determine the use instructions or decisions of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderRepresentative.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller, on behalf of such Seller and such Seller’s successors, heirs and permitted assigns, hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Holdings as the sole representative (the “Sellers’ Representative”) of ” as such Seller to act as the Sellers’ agent and on behalf of such Seller attorney-in-fact for all purposes set forth in this Agreement, including the full power and authority (i) to perform the Transactions to be performed by a Seller under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; to disburse any funds received hereunder to Sellers, (iii) delivering to execute and deliver on behalf of each Seller any funds hereunder amendment or waiver under any Ancillary Agreement; this Agreement and to agree to resolution of all claims hereunder, (iv) determining whether to retain legal counsel and other professional services, at the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if expense of Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof 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 is permitted or required to do or exercise under this Agreement.
(b) The Sellers’ Representative will have no liability to any Seller for any act done or omitted under this Agreement as the Sellers’ Representative while acting in good faith and not in a manner constituting wanton misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Sellers will severally (in accordance with Article VII their Pro Rata Share) indemnify and hold harmless the Sellers’ Representative from and against any Losses the Sellers’ Representative may suffer as a result of any such action or omission.
(Termination, Amendment and Waiver); (vic) taking any and all actions that may be necessary or desirable, The Sellers’ Representative will receive no compensation for services as determined by the Sellers’ Representative. The Sellers will reimburse the Sellers’ Representative in his sole discretionaccordance 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 amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment performance of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity duties under this Agreement. An amount equal to the Sellers’ Representative Expense Fund will be delivered to the Sellers’ Representative at the Closing to be held in trust as the representative a source of such Seller, any reimbursement for costs and all notices, documents or certificates to be executed out-of-pocket expenses (including costs of professional advisers) incurred by the Sellers’ Representative, on behalf of such Seller, Representative for its obligations in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting with any consent or approval on behalf balance of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled Expense Fund not incurred for such purposes to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that Share at such times as determined by Sellers’ Representative.
(d) If the Sellers’ Representative resigns or is otherwise unable or unwilling to 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 continue exercise any right under this Agreement except through the Sellers’ Representative.
(e) The appointment of the Sellers’ Representative as the attorney-in-fact for each Seller as set forth in this Section 11.16 and all authority hereby conferred are granted and conferred in consideration of the interest of the other Sellers, is therefore coupled with an interest and is and will be irrevocable and shall neither be terminated nor otherwise affected by any act of any Seller or by operation of law, whether by the death, dissolution, liquidation, incapacity or incompetence of such Seller or by the occurrence of any other event. If, 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 hold act in accordance with this Section 11.16 as if that death, dissolution, liquidation, incapacity or incompetency had not occurred and regardless of notice thereof. Each Seller agrees to execute such ▇▇▇▇▇ and documents as may be necessary and to give such instructions to his personal representatives as may be necessary so that its successors will remain subject to this Agreement and carry out the full intent and purposes hereof. Without limiting the generality of the foregoing, this Section 11.16 will not distribute be affected by the subsequent incapacity or mental incompetency of any funds which he, in his sole Seller.
(f) Each Seller and absolute discretion, deems prudent or necessary for payment the Sellers’ Representative acknowledge and agree that Buyer may rely on Sellers’ appointment of anticipated expenses associated the Sellers’ Representative and deal exclusively with the discharge Sellers’ Representative, consistent with such appointment as provided herein and the provisions of his duties hereunderthis 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 Agreement shall constitute a full acquittance of Buyer with respect thereto, and Buyer shall have no obligation to see to the application of such payments.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Sellers’ Representative. (a) Each The Seller Representative is hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ constituted and appointed as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and attorney-in-fact for and on behalf of each Seller. Without limiting the generality of the foregoing, the Seller Representative has full power and authority, on behalf of each Seller and its, his or her successors and assigns, to (i) interpret the terms and provisions of this Agreement and the Related Documents, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Related Documents, (iii) receive service of process in connection with any claims under this Agreement, the Related Documents or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of such claims, assume the defense of claims, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing, (v) make any 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 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 Representative on any Seller in connection with this Agreement and the Escrow Agreement, including, without limitation, entering into amendments hereof and thereof.
(b) The Seller Representative shall not be liable to any Seller for any act done or omitted under this Agreement as Seller Representative while acting in good faith, and any act taken or omitted 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 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 instruction of the Seller Representative constitutes a decision of each Seller. Such decision, act, consent or instruction is final, binding and conclusive upon each Seller and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Seller Representative for all purposes of this Agreement and the Escrow Agreement. Notices or communications to or from the 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, then the Seller by [majority vote] shall promptly appoint a successor to the Seller Representative. In addition, the Seller (including the Seller Representative) may replace the Seller Representative from time to time pursuant to a written consent executed by Combe. Any successor to the Seller Representative shall become the “Seller Representative” for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor effective upon five (5) Business Days’ prior written notice given to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests Buyer and the other Transactions as fully to all intents and purposes as such Seller might or could do in personparties hereto.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Unique Fabricating, Inc.)
Sellers’ Representative. (a) Each Seller Vista Equity Partners Fund III, L.P. ("Sellers' Representative") is hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as appointed by each of the sole representative Sellers, Optionholders and Sponsor Holdings Owners (the “Sellers’ Representative”"Represented Parties") of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any the Represented Parties and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent for and on behalf of each Represented Party for purposes of this Agreement, the Escrow Agreement and the Option Escrow Agreement (including entry into the Escrow Agreement and the Option Escrow Agreement) with full power and authority on such Represented Parties' behalf (a) to enter into the Transaction Documents to which it is a party, (b) to consummate the transactions contemplated herein, (c) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (d) to disburse any funds received hereunder to each such Represented Party, (e) to execute and deliver on behalf of such Represented Parties any amendment or waiver hereto, (f) to take all other actions to be taken by or on behalf of such Represented Parties in connection herewith, (g) to negotiate, settle, compromise and otherwise handle any claims for indemnification or made pursuant to this Agreement hereof, and (h) to do and perform each and every act and thing requisite exercise any and necessary all rights which each such Represented Party is, or the Represented Parties collectively are, permitted or required to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might do or could do in person.
(c) Each Seller exercise under this Agreement. Sellers' Representative hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the SellersRepresented Parties, and Purchaser accepts the appointment by each such Seller to act on its behalf, as provided herein, as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby. A decision, act, consent or instruction of Sellers' Representative hereunder shall constitute a decision, act, consent or instruction of all Sellers and shall be entitled final, binding and conclusive upon each Represented Party, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of Sellers' Representative as being the decision, act, consent or instruction of each and every Represented Party and the Escrow Agent, Buyer and the Company shall be relieved from any liability to rely on any Person for any acts done by them in accordance with such decision, act, consent or instruction of Sellers' Representative. The appointment of Sellers' Representative shall be coupled with an interest and all action taken shall be irrevocable by any Represented Party in any manner or for any reason. Sellers' Representative shall promptly notify Buyer in the event of its replacement by another Sellers' Representative. For the avoidance of doubt, Sellers' Representative shall act as attorney-in-fact and agent for any Represented Party or Represented Parties for the purposes Section 12.03 and Section 12.04, whether such Represented Party is the Indemnified Party or the Indemnifying Party.
(b) At the Closing, Buyer shall deliver to Sellers' Representative an amount equal to $2,000,000 (the "Sellers' Representative Expense Fund") to be held in trust to cover and reimburse the fees and expenses incurred by Sellers’ ' Representative under for its obligations in connection with this Agreement without any liability to, or obligation to inquire of, any and the transactions contemplated herein. Any balance of the Sellers, notwithstanding any knowledge on the part of Purchaser of any ' Representative Expense Fund not incurred for such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement purposes shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute returned to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers Optionholders in accordance with their respective Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderShares.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as In order to efficiently administer (i) the sole representative 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 (iv) the Escrowed Amount and the Escrow Agreement, the Sellers’ Representative”) of such Seller Representative is hereby designated by, and agrees to act as the agent 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 fact for purposes of, and with full authority on the behalf of such Seller for all purposes under this Agreement, including for the purposes ofeach of them: (i) acceptance to receive payment of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewithallocate the Purchase Price; (ii) review to make all decisions relating to the resolution of the Statementdisputes relating to any Disputed Amounts; (iii) delivering to take all action necessary in connection with the defense and/or settlement of any funds hereunder or under indemnity claims of any Ancillary AgreementIndemnified Party pursuant to ARTICLE VII; (iv) determining whether to give and receive all notices required to be given to the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising Sellers under this Agreement or the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriateEscrow Agreement; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof to amend this Agreement in accordance with Section 9,13 9.8 and to deliver any Updated Disclosure Schedules pursuant to Section 5.3, and (Amendments vi) to take any and Waivers); (vii) accepting notices 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 the Escrow Agreement. Each Seller agrees that such Seller in accordance agency and proxy are coupled with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirablean interest, as determined by are therefore irrevocable without the consent of the Sellers’ Representative in his sole discretionand shall survive the death, in connection with incapacity, bankruptcy, dissolution or liquidation of any Seller. All decisions and actions by the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As (to the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers extent authorized by and shall have authority to bind each Seller in accordance with this Agreement) shall be binding upon all of the Sellers, and Purchaser may rely 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 such appointment and authority until the receipt of notice part of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints shall, solely as to the Sellers’ Representative as such Seller’s true , be entitled to conclusively rely on the opinions and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale advice of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personpersons.
(c) Each Seller hereby agrees that: (i) in all matters in which action by In the event that the Sellers’ Representative is required becomes unable to perform his responsibilities hereunder or permittedresigns 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 is authorized to act on behalf for all purposes of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments Buyer has the right to or by Sellers under this Agreement shall be made in proportion rely conclusively on the instructions and decisions of the Sellers’ Representative as to the Pro Rata Share settlement of Sellersany claims for indemnification by Buyer pursuant to ARTICLE VII, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related actions required to be taken by the Equity Interests)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 the Sellers’ Representatives.
(e) 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 expense (including attorneys’ fees) which may be incurred by Sellers’ Representative arising out of or relating to the performance of his duties and obligations as the Sellers’ Representative hereunder or under the Transaction Documents, except to the extent as the consequence of fraud, gross negligence or willful misconduct on the part of the Sellers’ Representative.
(f) The Sellers agree Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Sellers’ Representative shall not be liable to any Seller for any action taken or omitted by the Sellers’ Representative or any agent employed by the Sellers’ Representative hereunder or under any other document entered into in connection herewith, except that the Sellers’ Representative shall not be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) relieved of the Purchase Price to establish a reserve to be held any liability imposed by the Sellers’ Representative and used law for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreementwillful misconduct. The Sellers’ Representative shall have not be liable to the sole and absolute discretion to determine the use Sellers for any apportionment or distribution of such funds. Any portion of such funds that have not been used payments made by the Sellers’ Representative by in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the second (2nd) anniversary 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 Closing Date amount to which they are determined to have been entitled. The Sellers’ Representative shall not be distributed required to make any inquiry concerning either the Sellers in accordance with their Pro Rata Shareperformance or observance of any of the terms, provided that provisions or conditions of this Agreement. Neither the Sellers’ Representative nor any agent employed by the Sellers’ Representative shall be entitled incur any liability to continue any Seller by virtue of the failure of the Sellers’ Representative for any reason to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent consummate the transactions contemplated hereby or necessary for payment relating to the performance of anticipated expenses associated with the discharge of his 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 constituted and appointed Sellers’ Representative as its true and lawful agent and attorney-in-fact, with full power of substitution to perform the duties of Sellers’ Representative under the terms of this Agreement and to act in such Selling Equityholder’s name, place, and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement and the Related Documents, including without limitation: to act on such Selling Equityholder’s behalf in any Proceeding involving this Agreement or any 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 such further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate 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 or any 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 expenses of the Sellers’s Representative and to any indemnification payments made by the Sellers’ Representative or any other Selling Equityholder pursuant to this Agreement or the Escrow Agreement; (vi) bring, defend, handle, settle, and otherwise deal with in every way any indemnification dispute under ARTICLE VI, and (vii) receive service of process in connection with any claims under this Agreement, where applicable.
(b) The Sellers’ Representative’s power and duties may be exercised, discharged or performed by any person or representative authorized by the 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 conclusively and absolutely rely, without inquiry, upon any action of the Sellers’ Representative in all matters referred to herein. The Selling Equityholders hereby appoints 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. The Sellers’ Representative shall 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 consistent with the Sellers’ Representative’s obligations under this Agreement.
(c) The 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 any act, failure, or omission whatsoever of the Sellers’ Representative in performing his duties under this Agreement absent the Sellers’ Representative’s fraud or willful 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 under this Agreement (or any failure to perform any such power or duty), including reasonable out-of-pocket legal fees and other costs and expenses of defending against any claim arising out of such duties.
(e) The Sellers’ Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals, and for anything done, omitted, or suffered in good faith by the Sellers’ Representative based on such advice, the Sellers’ Representative shall not be liable to anyone. Notwithstanding anything to the contrary contained in this Agreement, the Sellers’ Representative, in its capacity as such, shall have no duties or responsibilities or rights except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations, or liabilities on behalf of any Selling Equityholder shall otherwise exist against the Sellers’ Representative.
(f) The Sellers’ Representative may resign from its position as Sellers’ Representative h▇▇▇▇ ▇▇▇▇▇▇▇ at any time, by delivery of at least 30 days’ prior written notice to the Selling Equityholders and Purchaser. The Selling Equityholders representing in interest at least a majority of the aggregate Pro Rata Portion attributable to all Selling Equityholders shall have the authority, 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 sole representative (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 such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for .
(g) All reasonable out-of-pocket expenses incurred by the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser Sellers’ Representative in connection therewith; (ii) review 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 reimbursed by the Selling Equityholders as provided above or, at the election of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, from releases of the Escrow Amount or the Representative Fund.
(h) Notwithstanding anything to the contrary in his sole 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, determines that such waiver is appropriate; (v) taking any action that may be necessary solely for the purposes of covering out-of-pocket expenses incurred by it in carrying out its duties hereunder or desirable, as determined for distribution to the Selling Equityholders in the amounts designated by the Sellers’ Representative in his sole discretion, writing (in connection with the termination hereof all cases in accordance with Article VII (Termination, Amendment and Waivertheir respective Pro Rata Portions); (vi) taking any and all actions that may be necessary or desirable, as determined by . The Sellers’ Representative shall send an account statement to each of the Selling Equityholders on a quarterly basis reflecting any activity in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Representative Fund for the preceding quarter. The Sellers’ Representative in his sole discretion, in connection with may instruct the payment Escrow Agent to invest and handle the amounts of the costs and expenses incurred Representative Fund until the allocation or payment thereof, as the case may be, according to its commercial reasonable discretion. Contemporaneous with respect to or as soon as practicable following the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at completion of the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as responsibilities hereunder and in any event no later than the representative date falling on the three (3) year anniversary of such Sellerthe Closing Date, any and all notices, documents or certificates to be executed by the Sellers’ RepresentativeRepresentative shall instruct the Escrow Agent to release the remaining balance of the Representative Fund, on behalf of such Seller, less an amount deemed reasonably necessary by the Sellers’ Representative for use in connection with this Agreementany outstanding, unresolved claims of Losses brought pursuant to Section 6.3, to the Ancillary Agreements Selling Equityholders in accordance with their respective Pro Rata Portions.
(i) Purchaser shall have the absolute right and authority to rely upon the Transactions; (xi) granting any consent acts taken or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement omitted to be performed taken by such Seller or by the Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the SellersSelling Equityholders, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation have no duty to inquire of, any as to the acts and omissions of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force . Each Selling Equityholder hereby acknowledges and effect until irrevocably agrees that (i) all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases deliveries by Purchaser to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute deemed deliveries to the Sellers at the Closing One Million Dollars Selling Equityholders, ($1,000,000ii) Purchaser shall not have any Liability with respect to any aspect of the Purchase Price distribution or communication of such deliveries between the Sellers’ Representative and any Selling Equityholder, and (iii) any disclosure made to establish a reserve the Sellers’ Representative by or on behalf of Purchaser shall be deemed to be held 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 and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderreason.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇of the Sellers other than M▇▇▇▇▇▇ Sr. hereby appoints M▇▇▇▇▇▇ Sr. as their "REPRESENTATIVE" and agrees that the sole representative (Representative shall have the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes authority arising under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder Agreement or under any Ancillary Agreement and delivery of wire instructions other Transaction Documents to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representativewhich Sellers are party, on behalf of each of the Sellers other than M▇▇▇▇▇▇ Sr. (the "NON-M▇▇▇▇▇▇ SELLERS"), to:
(a) Enter into amendments designed to clarify the terms of this Agreement or the Transaction Documents;
(b) Undertake such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval actions on behalf of such Seller the Non-M▇▇▇▇▇▇ Sellers that specifically require action by them under this Agreement; Agreement or the Transaction Documents;
(c) Grant extensions or waivers with respect to Buyer's performance of its obligations hereunder or under the Transaction Documents or the Buyer Notes, including but not limited to, waivers or subordination of liens to facilitate financing of EOIR and its affiliates post-Closing;
(xiid) taking Execute and deliver any and all other actions and doing any and all other things provided in documents or agreements contemplated by this Agreement or the Transaction Documents, or necessary or desirable in connection with the transactions contemplated by this Agreement or the Transaction Documents, and enter into amendments to clarify the terms of such documents and agreements;
(e) Give and receive notices, instructions and other communications under this Agreement or the Transaction Documents and any Ancillary other documents or agreements contemplated hereunder or thereunder;
(f) Negotiate, document and settle all post closing matters between Buyer and such Non-M▇▇▇▇▇▇ Sellers related to this Agreement or the Transaction Documents;
(g) Take such actions with respect to be performed this Agreement, the Transaction Documents and the other documents and agreements contemplated by such Seller this Agreement as the Representative may deem necessary or by Sellers’ Representative appropriate on behalf of such SellerNon-M▇▇▇▇▇▇ Sellers;
(h) Receive service of process in connection with any claims under this Agreement or the Transaction Documents; and
(i) To make the election under Section 338(h)(10) pursuant to Section 4.2. As The appointment of the representative Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and EOIR may conclusively and absolutely rely, without inquiry, upon any action of the Representative in all matters referred to herein. If Representative resigns, dies or is otherwise unable to serve as the Representative, the successor Representative shall be designated in writing by the Non-M▇▇▇▇▇▇ Sellers who held a majority of the EOIR Common Stock immediately prior to the Closing (exclusive of EOIR Common Stock held by M▇▇▇▇▇▇ Sr.), and such designation shall be binding upon all of the Non-M▇▇▇▇▇▇ Sellers. If any Non-M▇▇▇▇▇▇ Seller should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Representative pursuant to this Section 1.6 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Representative, the Buyer or EOIR shall have received notice of such death, incapacity, termination or other event. All notices and other deliveries required to be made or delivered by the Buyer or EOIR to the Non-M▇▇▇▇▇▇ Sellers shall be made to the Representative for the benefit of the Non-M▇▇▇▇▇▇ Sellers and shall discharge in full all notice requirements of the Buyer or EOIR to the Non-M▇▇▇▇▇▇ Sellers with respect thereto. The Non-M▇▇▇▇▇▇ Sellers hereby confirm all that the Representative shall do or cause to be done by virtue of his appointment as the Representative of the Non-M▇▇▇▇▇▇ Sellers’ . The Representative shall act as for the agent for Non-M▇▇▇▇▇▇ Sellers on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Non-M▇▇▇▇▇▇ Sellers and consistent with his and their obligations under this Agreement, but the Representative shall have authority not be responsible to bind each Seller the Non-M▇▇▇▇▇▇ Sellers for any loss or damages the Non-M▇▇▇▇▇▇ Sellers may suffer by the performance by the Representative of his duties under this Agreement, other than loss or damage arising from his willful violation of the law or his duties hereunder. The Representative and his heirs and personal or legal representatives shall be held harmless by the Non-M▇▇▇▇▇▇ Sellers from, and indemnified against, any loss or damages arising out of or in connection with the performance of his obligations in accordance with the provisions of this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice except for any of the appointment foregoing arising out of a successor upon five (5) Business Days’ prior written notice his willful violation of the law. The foregoing indemnity shall survive the resignation or substitution of the Representative. Notwithstanding the foregoing, nothing in this Agreement shall permit nor authorize the Representative to Purchaser.
(b) take any action to modify, reduce or alter the amount or timing of payments due under the Promissory Notes. Each Seller (of the Sellers other than Sellers’ M▇▇▇▇▇▇ Sr. shall deliver to the Representative the stock certificate(s) evidencing the EOIR Common Stock held by such Seller, together with a duly executed blank stock power, and hereby authorizes the Representative to deliver such certificates and stock power in connection with the Closing under this Agreement. To further effect the foregoing, each of the Non-M▇▇▇▇▇▇ Sellers shall execute a power of attorney in the form of EXHIBIT B designating the Representative (including any replacement Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful his or her attorney-in-fact and agent, with full power of substitution and resubstitutionfor the purposes set forth in this Section. The Representative may resign by written notice to the Sellers other than M▇▇▇▇▇▇ Sr. and, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability toevent, or obligation to inquire of, any upon death or incapacity of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ replacement Representative shall be entitled to retain and not distribute to chosen by action of the Sellers at the Closing One Million Dollars ($1,000,000) voting pro rata based on principle balance of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata SharePromissory Notes), provided that the Sellers’ which new Representative shall be entitled reasonably acceptable to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Markland Technologies Inc)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Sellers have appointed Hubson as the sole Sellers’ representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of any or all Sellers under this Agreement and the Escrow Agreement pursuant to that certain Contribution and Appointment Agreement entered into by and among Sellers and dated of even date herewith (the “Appointment Agreement”).
(b) If, after the dissolution, bankruptcy, insolvency, or removal, as applicable, of Sellers’ Representative, a successor Sellers’ Representative has not been appointed by Sellers within thirty (30) business days after a written request by Buyer, Buyer will have the right to appoint an independent Sellers’ Representative to fill any vacancy so created by written notice of such appointment to Sellers. Sellers may immediately remove Buyer’s appointee, and may appoint a Sellers’ Representative at any time, but such appointment shall not be effective until Buyer receives notice of such appointment in accordance with the notice requirements set forth in Section 9.5. Sellers represent and warrant that they have entered into the Appointment Agreement and that Buyer is an express third party beneficiary of the obligations of the parties under Sections 5, 7, 8 and 10 thereunder. A true and complete copy of the Appointment Agreement, as amended through the date hereof, has been made available to Buyer prior to the execution by Acquisition Co. and Buyer of this Agreement. None of Sellers shall amend, modify, waive any of its rights under Sections 5, 7, 8 or 10 of the Appointment Agreement, or terminate the Appointment Agreement without the prior written consent of Buyer.
(c) None of Buyer, Acquisition Co., Company or any of their respective Affiliates shall have any Liability to any Seller or otherwise to the extent they arise out of the acts or omissions of Sellers’ Representative or any disputes among or between Sellers or with Sellers’ Representative. Buyer, Acquisition Co., Company and their respective Affiliates shall be entitled to treat Sellers’ Representative as the duly appointed attorney-in-fact of each Seller and, in their dealings with Sellers’ Representative, may rely, without inquiry, upon any act, decision, consent or instruction of Sellers’ Representative as the act, decision, consent or instruction of any or all Sellers. Notices given to Sellers’ Representative in accordance with the provisions of this Agreement or any of the other instruments and documents contemplated hereby or executed in connection herewith (the “Ancillary Agreements”) shall constitute notice to Sellers for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions such Ancillary Agreements. Payment to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionof any amounts required to be paid by or on behalf of Acquisition Co., in connection with the termination hereof in accordance with Article VII (TerminationBuyer, Amendment and Waiver); (vi) taking Company or any and all actions that may be necessary or desirable, as determined by of their respective Affiliates to Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement shall be for the account and benefit of Sellers and no Seller shall have any right to be performed by such Seller make any claim against Acquisition Co., Buyer, Company or by any of their respective Affiliates with respect to any failure of Sellers’ Representative on behalf of to distribute such Sellerpayments to Sellers. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers hereby represents and shall have authority warrants to bind each Seller in accordance with this Agreement, Acquisition Co. and Purchaser may rely on such appointment and authority until the receipt of notice of Buyer that the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true by Sellers and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary on Sellers’ behalf pursuant to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: this Section 1.6 (i) in has been duly authorized by all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellersrequisite action, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge no other proceedings on the part of Purchaser of any Sellers is necessary to authorize such dispute appointment or disagreement; action, and (ii) does not (x) conflict with or violate the power and authority governing documents of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired (y) conflict with or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases violate any Law applicable to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, or (z) conflict with, result in any breach of, give rise to serve as described in a right of termination, cause the forfeiture of any right, constitute a default (or an event that, with notice or lapse of time or both would become a default under), require any notice or consent of any person pursuant to, or otherwise violate any Contract binding upon Sellers’ Representative. For purposes of this Agreement.
, “Law” shall mean any applicable foreign, federal, state or local statute, law (d) All payments to including common law), rule, governmental or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second governmental permit, authorization, license or approval, ordinance, regulation, code, order (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Sharewhether temporary, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which hepreliminary or permanent), in his sole and absolute discretionjudgment, deems prudent injunction, writ, decree, administrative requirement or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderother restriction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent has irrevocably constituted and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints appointed Sellers’ Representative as such Seller’s its true and lawful agent and attorney-in-fact and agentfact, with full power of substitution to perform the duties of Sellers’ Representative under the terms of this Agreement and resubstitution, to act in such Seller’s name, place and steadstead with respect to all transactions contemplated by and all terms and provisions of this Agreement and the Related Documents, including without limitation: to act on such Seller’s behalf in any Proceeding involving this Agreement or any Related Document, to give and receive notices and communications on behalf of the Sellers where applicable, and to do or refrain from doing all capacitiessuch further acts and things, and to execute all such documents as the Sellers’ Representative shall deem necessary or appropriate in connection with the Transactions, granting unto said attorney-in-fact transactions contemplated by this Agreement and agent full power and authority 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 perform each compromises of, and every act demand arbitration and thing requisite comply with courts orders and awards of arbitrators with respect to claims for indemnification pursuant to this Agreement or any Related Document, (iii) execute and deliver all amendments, waivers, any Related Document, stock powers, certificates and documents that the Sellers’ Representative deems reasonably necessary to be done or appropriate in connection with the sale consummation of such Sellerthe transactions contemplated by this Agreement, (iv) pay the reasonable out of pocket fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement, (v) handle of any indemnification dispute with the Purchaser post-Closing of the transactions contemplated by this Agreement, and (vi) receive service of process in connection with any claims under this Agreement, where applicable. Notwithstanding the foregoing, the foregoing appointment, the Sellers’ Representative undertakings, and all arrangements referred to hereunder below, shall not apply to a Solo Shareholder Claim.
(b) The Sellers’ Representative’s Equity Interests power and duties may be exercised, discharged or performed by any person or representative authorized by the 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 Transactions Person may 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 fully the Sellers’ Representative in accordance with the provisions hereof. The Sellers’ Representative shall act for all Sellers on all of the matters set forth in this Agreement in the manner the Sellers’ Representative, in his discretion, believes to all intents be in the best interest of the Sellers and purposes as such Seller might or could do in personconsistent with the Sellers’ Representative’s obligations under this Agreement.
(c) Each Seller hereby agrees that: (i) in all matters in which action by The Sellers’ Representative is required shall not be responsible or permittedliable to any Seller for, and each Seller hereby irrevocably releases the Sellers’ Representative is authorized to act (in its capacity as such) and its respective officers, directors, shareholders, agents, employees and/or anyone on its behalf, from, any liability, losses or damages any Seller may incur or suffer as a result of any act, failure or omission whatsoever of the Sellers’ Representative in performing his duties under this Agreement, provided the Sellers’ Representative acts reasonably and in good faith.
(d) The Sellers shall, upon the Sellers’ Representative’s first demand fully indemnify and hold the Sellers’ Representative harmless, on a several basis, in accordance with each Seller’s respective Pro Rata Portion (where Sellers’ Representative shall participate as well in his capacity as a Seller), the Sellers’ Representative 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 such Seller, notwithstanding any dispute or disagreement among the Sellers’ Representative, and Purchaser shall be entitled to rely on any and all action taken by incurred in the performance of his powers or duties as the Sellers’ Representative under this Agreement without (or any liability to, or obligation failure to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of perform any such dispute power or disagreement; (ii) the power duty), including reasonable out-of-pocket legal fees and authority other costs and expenses of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations defending against any claim arising out of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)duties.
(e) The Sellers’ Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals, and for anything done, omitted or suffered in good faith by the Sellers’ Representative based on such advice, the Sellers’ Representative shall not be liable to anyone. Notwithstanding anything to the contrary contained in this Agreement, the Sellers’ Representative, in its capacity as such, shall have no duties or responsibilities or rights except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against the Sellers’ Representative.
(f) The Sellers’ Representative may resign from his position as Sellers’ Representative hereunder at any time, by delivery of at least thirty (30) days’ prior written notice to the Shareholders. The Sellers agree representing in interest at least sixty percent (60%) of the aggregate Pro Rata Portion attributable to all Sellers shall have the authority, and, if the Sellers’ Representative shall resign, be dissolved, otherwise be legally incapacitated or unwilling to fulfill his/her/its responsibilities as Sellers’ Representative hereunder, the duty, to replace the Sellers’ Representative upon prompt written notice to the Purchaser and subject to Purchaser’s approval of such successor Sellers’ Representative. Any such successor shall become the “Sellers’ Representative” for purposes of this Agreement.
(g) All reasonable out-of-pocket expenses incurred by the Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers. Such expenses borne by the Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative and which were not covered in advance shall be reimbursed by the Sellers as provided above.
(h) Notwithstanding anything to the contrary in this Agreement, on the Closing, from the amount of the Closing Cash deposited by Purchaser with the Payment Agent, the amount of the Representative Fund (allocated between all Sellers in accordance with their respective Pro-Rata Portions) shall be retained by the Payment Agent, such amount being intended for use by the Sellers’ Representative, and released to it by the Payment Agent from time to time at its request, in its discretion, in covering out-of-pocket expenses incurred by it in carrying out its duties hereunder. The Sellers’ Representative may instruct the Payment Agent to invest and handle the amounts of the Representative Fund until the allocation or payment thereof, as the 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 entitled to retain and not distribute deemed deliveries to the Sellers at Sellers, (2) the Closing One Million Dollars ($1,000,000) Purchaser shall not have any Liability with respect to any aspect of the Purchase Price distribution or communication of such deliveries between the Sellers’ Representative and any Seller and (3) any disclosure made to establish a reserve the Sellers’ Representative by or on behalf of the Purchaser shall be deemed to be held 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 and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderreason.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the his, her or its true, lawful and sole representative agent, proxy and attorney-in-fact (the such individuals acting jointly in such capacity, “Sellers’ Representative”) of such Seller to act as the agent for and on behalf of such Seller for in all purposes under matters relating to or arising out of this AgreementAgreement and the Ancillary Documents, including for the purposes ofincluding: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewithconsummate the Transactions; (ii) review to pay such Seller’s expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the Statementdate hereof), including by using funds from the Sellers’ Representative Holdback; (iii) delivering to disburse any funds received hereunder or under any Ancillary Agreementto each Seller; (iv) determining whether to endorse and deliver any certificates or instruments representing the conditions to closing in Article VI (Conditions Precedent) have been satisfied Equity Interests and supervising execute such further instruments of assignment as the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriateBuyer shall reasonably request; (v) taking to execute and deliver any action that may be necessary Ancillary Documents, and any amendment to such Ancillary Documents, and all other instruments and documents of every kind incident to or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with otherwise relating to this Agreement and the termination hereof in accordance with Article VII (Termination, Amendment and Waiver)Ancillary Documents; (vi) taking any to negotiate, execute and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices deliver on behalf of such Seller in accordance with Section 9,04 (Notices)any waiver, consents or amendment to this Agreement; (viiivii) taking to take any and all actions that may be necessary or desirable, as determined by which the Sellers’ Representative in his sole discretion, in connection with the payment believes are necessary or appropriate under this Agreement for and on behalf of the costs Sellers, including (A) to assert or institute any claim, (B) investigate, defend, contest or litigate any claim involving the Buyer, the Vionic Entities or any Governmental Entity against the Sellers’ Representative or the Sellers, and expenses incurred receive process on behalf of any or all Sellers in any such claim and compromise or settle on such terms as the Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim, (C) file any proofs of debt, claims and petitions as the Companies Sellers’ Representative may deem advisable or necessary, (D) to dispute or refrain from disputing, on behalf of such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing relative to any amounts to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold received by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Sellerunder this Agreement or any agreements contemplated hereby, any claim made by the Buyer under this Agreement or other agreements contemplated hereby, (E) to negotiate and all notices, documents or certificates to be executed by Sellers’ Representativecompromise, on behalf of such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any other agreement contemplated hereby, including any disputes under Section 3.03 or Article 11, (F) to execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) to engage attorneys, accountants, agents or consultants on behalf of the Sellers in connection with this Agreement, the Ancillary Agreements Agreement or any other agreement contemplated hereby and the Transactionspaying any fees related thereto; (xiix) granting any consent to prepare or approval cause the Seller Returns to be prepared, including engaging accountants for such purpose; (ix) to take all other actions to be taken by or on behalf of such Seller in connection herewith; (x) to retain the Sellers’ Representative Holdback, subject to Section 12.15(f) hereof, and pay amounts therefrom in accordance with this Agreement; (xi) to accept notices on behalf of the Sellers or any individual Seller in accordance with Section 12.07; (xii) to finally and conclusively determine, at any time, the applicable Seller Allocation Percentages; and (xiii) to do each and every act and exercise any and all rights which such Seller, or the Sellers collectively are permitted or required to do or exercise under this Agreement; . Each Seller shall be fully bound by the acts, decisions and (xii) taking any agreements of Sellers’ Representative taken and done pursuant to the authority herein granted, and such Seller hereby confirms that Sellers’ Representative shall do or cause to be done by virtue of its appointment as Sellers’ Representative. The authority of Sellers’ Representative hereunder may be exercised by Sellers’ Representative by the two individuals serving as Sellers’ Representative signing jointly as Sellers’ Representative for each Seller or, after listing all Sellers, executing an instrument, by signing jointly as Sellers’ Representative for all of them. The Buyer and all other actions Persons may conclusively and doing absolutely rely, without inquiry, upon any action of Sellers’ Representative in all matters referred to in this Agreement.
(b) Each Seller agrees that the agency and all proxy described in this Section 12.15 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 and furthermore in the case of the Asset Seller, are intended to secure an interest in property and the obligations of the Asset Seller. The provisions of this Section 12.15 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the rights of the Sellers hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. If any Seller dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Seller being a “Former Holder”) and, as a result, the agency and power of attorney conferred by this Section 12.15 is revoked by operation of law, it shall not be a breach by such Former Holder under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other things legal representative of such Former Holder (each a “Successor Holder”) confirms the appointment of Sellers’ Representative as agent and attorney-in-fact for such Successor Holder. In addition, if the agency and power of attorney conferred by this Section 12.15 is revoked by operation of law and thereafter not reconfirmed by the Successor Holder prior to the Closing, such revocation shall not be deemed a breach by the Successor Holder of any of the provisions of this Agreement provided in or that the Equity Interests held by such Successor Holder are delivered for transfer to the Buyer at the Closing as contemplated by Section 3.02, and further provided that such Successor Holder executes and delivers such other certificates, documents or instruments that would have been delivered on its behalf by Sellers’ Representative had such Successor Holder reconfirmed the agency and power of attorney conferred by this Agreement Section 12.15. All decisions and actions by Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, and protest or otherwise contest the same.
(c) The Sellers agree that the Buyer, its Affiliates and the Vionic Entities shall be entitled to rely on any Ancillary Agreement to be performed by such Seller or action taken by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized or otherwise contemplated to act on behalf of such Sellerbe taken by, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without (an “Authorized Action”) and are hereby released and relieved from any liability toto any Person for (i) any acts or omissions by any of them in accordance with any Authorized Action and (ii) any instructions, decisions or obligation to inquire of, any actions of the Sellers, notwithstanding ’ Representative in any knowledge on Authorized Action. Any notice delivered to the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described Representative in this Agreement, shall continue in full force and effect until all rights and obligations accordance with the provisions of Sellers under this Agreement shall be deemed to have terminatedbeen delivered to each Seller. Each Seller agrees that any Authorized Action shall be binding on each Seller as fully as if such Seller had taken such Authorized Action. Each Seller (based on its Seller Allocation Percentage) hereby severally, expired or been fully performed; for itself only and (iii) if not jointly and severally, agrees to indemnify and hold harmless Sellers’ Representative resigns against all fees, costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Sellers’ Representative in connection with any action, suit or Proceeding to which Sellers’ Representative is removed made a party by reason of the fact it is or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act was acting as Sellers’ Representative, Representative pursuant to serve as described in the terms of this Agreement.
(d) All payments to or Sellers’ Representative shall not have by Sellers under reason of this Agreement shall be made a fiduciary relationship in proportion to the Pro Rata Share of Sellersrespect of, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective rightor any fiduciary duties to, title and interest in and to the payment to which it is entitled any Seller, except in respect of its Equity Interests (notwithstanding anything in amounts received on behalf of such Seller. Sellers’ Representative shall not be liable to any organizational document of All Risks Seller for any action taken or ICS omitted by it or any agent employed by it hereunder or under any other Contract related to the Equity Interests).
(e) The Sellers agree document entered into in connection herewith, except that the Sellers’ Representative shall not be relieved of any liability imposed by law for willful misconduct. Sellers’ Representative shall be entitled to retain rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses error in judgment or other act or omission of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreementsuch advice shall in no event subject Sellers’ Representative to liability to any Seller. The Sellers’ Representative shall have not be liable to the sole and absolute discretion to determine the use Sellers for any apportionment or distribution of such funds. Any portion of such funds that have not been used payments made by the Sellers’ Representative by in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the second (2nd) anniversary 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 Closing Date shall be distributed amount to the Sellers in accordance with their Pro Rata Share, provided that the which they are determined to have been entitled. Neither Sellers’ Representative nor any agent employed by it shall incur any liability to any Seller by virtue of the failure or refusal of Sellers’ Representative for any reason to consummate the Transactions or relating to the performance of its other duties hereunder, except for actions or omissions constituting Fraud or bad faith.
(e) If ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall resign or otherwise be unable to fulfill his responsibilities hereunder, Alpine Investors IV SBIC, LP and Alpine Investors IV, LP, acting together, may appoint a successor. If ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall resign or otherwise be unable to fulfill his responsibilities hereunder, C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be entitled his successor, unless he is unable to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.serve. If
Appears in 1 contract
Sellers’ Representative. (a) Each Seller By the execution and delivery of this Agreement, each of Sellers hereby irrevocably constitutes and appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Waste Systems, Inc. as the sole representative true and lawful agent and attorney-in-fact (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to act jointly in such Seller’s the name, place and stead, stead of Sellers with respect to the transfer of the Membership Interests owned by Sellers to Purchaser in any and all capacities, in connection accordance with the Transactionsterms and provisions of this Agreement, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of Sellers in any litigation or arbitration involving this Agreement, to do or refrain from doing all such Seller, notwithstanding any dispute or disagreement among the Sellersfurther acts and things, and Purchaser shall be entitled to rely on any and execute all action taken by such documents as the Sellers’ Representative under shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power: (i) to act for Sellers with regard to all matters pertaining to indemnification referred to in this Agreement without (other than indemnification with respect to claims relating to a breach of an individual Seller’s representations and warranties under Article III of this Agreement or a breach of an individual Seller’s covenants hereunder), including the power to compromise any liability to, or obligation indemnity claim on behalf of Sellers and to inquire of, any transact matters of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreementlitigation; (ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the power and authority of Sellers’ Representative, as described Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to receive funds, shall continue make payments of funds, and give receipts for funds; (iv) to receive funds for the payment of expenses of the Sellers and apply such funds in full force and effect until all rights and obligations payment for such expenses; (v) to do or refrain from doing any further act or deed on behalf of the Sellers under that the Sellers’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement shall have terminated, expired or been as fully performedand completely as Sellers could do if personally present; and (iiivi) if Sellers’ Representative resigns or is removed or otherwise ceases to function receive service of process in its capacity as such for connection with any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in claims under this Agreement.
(da) All payments to or by Sellers under this Agreement The appointment of the Sellers’ Representative shall be made in proportion to the Pro Rata Share of Sellersdeemed coupled with an interest and shall be irrevocable, and each Seller agrees to Purchaser and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related Person may conclusively and absolutely rely, without inquiry, upon any action of the Sellers’ Representative in all matters referred to the Equity Interests).
(e) herein. The Sellers agree hereby confirm all that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve do or cause to be held done by virtue of his appointment as the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have act for all Sellers on all of the sole matters set forth in this Agreement in the manner the Sellers’ Representative believes to be in the best interest of Sellers and absolute discretion consistent with the obligations under this Agreement, but the Sellers’ Representative shall not be responsible to determine Sellers for any losses or damages Sellers may suffer by the use performance of his duties under this Agreement and the Sellers shall fully indemnify the Sellers’ Representative from and against any such funds. Any portion losses or damages, other than any such losses or damages arising from willful violation of such funds that have not been used the law or gross negligence in the performance of his duties as Sellers’ Representative under this Agreement.
(b) The Sellers agree to pay the expenses incurred by the Sellers’ Representative under the authorization granted in Section 13.12(a). Any expense, liability or obligation that the Sellers’ Representative incurs or pays on behalf of a Seller or group of Sellers shall be promptly reimbursed by Seller(s) on whose behalf such expenses were paid. In the second event any Seller does not promptly reimburse the Sellers’ Representative for any such expense, liability or obligation, the Sellers’ Representative shall have the right to withhold and keep such amount from any payments to be made to such Seller hereunder.
(2ndc) anniversary If the Sellers’ Representative should die, become disabled or otherwise unable to fulfill his responsibility as agent and attorney-in-fact of Sellers hereunder, then Sellers who held a majority of the Closing Date shall be distributed Membership Interests immediately prior to the Sellers in accordance with their Pro Rata ShareClosing (the “Requisite Sellers”) are authorized and shall, provided that promptly after such death, disability or other event, appoint a successor Sellers’ Representative and, promptly thereafter, notify Purchaser of the identity of such successor. Any such successor shall become the “Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to the Sellers’ Representative shall be entitled deemed to continue refer to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderRequisite Sellers.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Casella Waste Systems Inc)
Sellers’ Representative. (a) Each Seller hereby irrevocably nominates, constitutes and appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s its agent and true and lawful attorney-in-fact and agentfact, with full power of substitution and resubstitutionsubstitution, to act in such Seller’s the name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale stead of such Seller’s Equity Interests Seller with respect to the transactions described in this Agreement, to calculate ultimately and to resolve any disputes regarding the amount of the Indebtedness and the other Transactions as fully to all intents Transaction Expenses, and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such SellerSeller in any amendment of or litigation involving this Agreement or any claim for indemnification pursuant to Article VIII or under the Escrow Agreement and to do or refrain from doing all such further acts and things, notwithstanding any dispute or disagreement among and to execute all such documents, as the Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the transactions described in this Agreement, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of each Seller to consummate the transactions described in this Agreement;
(ii) to negotiate, execute (or have executed) and Purchaser deliver all ancillary agreements (including the Transaction Documents), statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions described in this Agreement (it being understood that, upon request by Buyer, each Seller shall execute and deliver any such documents which the Sellers’ Representative agrees to execute);
(iii) to act for Sellers with respect to all Purchase Price matters, including all Purchase Price allocation and adjustment matters referred to herein, including without limitation, calculation of Indebtedness, calculation of Transaction Expenses, calculation and delivery of the Closing Balance Sheet and Post-Closing Adjustments; and
(iv) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and to take all actions necessary to settle, pay or take any other actions with respect to each Seller’s indemnity obligations under Article VIII; and
(v) to take all actions which under this Agreement may be taken by a Seller (including under Article VIII) and to do or refrain from doing any further act or deed on behalf of a Seller 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 a Seller could do if personally present.
(b) The Sellers’ Representative hereby accepts his appointment as attorney-in-fact for each Seller.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other agreement executed in connection with the transactions described in this Agreement: (i) each Buyer Indemnified Party shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to any claim for indemnification, compensation or reimbursement pursuant to Article II or Article VIII or pursuant to the Escrow Agreement; and (ii) Buyer, each Buyer Indemnified Party, the Escrow Agent and each Seller shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of a Seller by the Sellers’ Representative, and all on any other action taken or purported to be taken on behalf of a Seller by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreementfully binding upon each Seller. A decision, shall continue in full force and effect until all rights and obligations act, consent or instruction of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, including an amendment, extension, waiver or termination of this Agreement pursuant to serve Section 10.1 or Section 11.1, shall constitute a decision of each Seller and shall be final, binding and conclusive upon each Seller; and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of Sellers’ Representative as described being the decision, act, consent or instruction of each Seller. The Escrow Agent and Buyer are hereby relieved from any Liability to any Person for any acts done by them in this Agreementaccordance with such decision, act, consent or instruction of the Sellers’ Representative.
(d) All payments to Each Seller recognizes and intends that the power of attorney granted in this Section 11.12: (i) is coupled with an interest and is irrevocable, (ii) may be delegated by the Sellers’ Representative and (iii) shall survive the death, dissolution, sale or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share other change of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect control of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)a Seller.
(e) The Sellers agree Sellers’ Representative will incur no Liability of any kind with respect to any action or omission by the Sellers’ Representative in connection with the Sellers’ Representative’s services pursuant to this Agreement and shall not be responsible to a Seller for any Losses or expenses that a Seller may suffer by reason of the performance by the Sellers’ Representative of its duties under this Section 11.12 other than Losses or other damages arising from the fraud, willful breach or intentional misrepresentation in the performance of the Sellers’ Representative’s duties under this Section 11.12. By virtue of the execution of this Agreement, each Seller hereby agrees to release, defend and hold harmless the Sellers’ Representative, his agents and Affiliates (the “Representative Parties”) from, and to indemnify the Representative Parties against, any and all losses, Liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel) for any action taken or not taken by the Sellers’ Representative in his capacity as attorney-in-fact under this Section 11.12, other than Losses or other damages arising from the fraud, willful breach or intentional misrepresentation in the performance of the Sellers’ Representative’s duties under this Section 11.12. Each Seller agrees to reimburse the Sellers’ Representative for any costs, expenses or indemnification obligations that the Sellers’ Representative shall be entitled to retain incurs on behalf of Sellers under this Agreement or the Escrow Agent.
(f) Each Seller acknowledges and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) agrees that any and all fees and expenses of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising incurred in connection with the administration performance of his the Sellers’ Representative’s duties hereunder, and any and all claims, expenses, Losses, or other costs which may come due as an obligation of Sellers hereunder, including without limitation payment of Indebtedness and Transaction Expenses, shall be, as among Sellers, the obligation of each Sellers’ proportionate to their Percentage Interest (a “Proportionate Share”), and each Seller hereby agrees that to the extent Sellers are obligated to make payments of any such obligations pursuant to this Agreement. The , then Sellers’ Representative shall have may offset such claims against any amounts due to Sellers hereunder, proportionate to such Seller’s Percentage Interest, and upon notice from the sole and absolute discretion to determine the use Sellers’ Representative of such funds. Any portion of a claim, each Seller shall contribute such funds that have not been used by Seller’s Proportionate Share to the Sellers’ Representative by wire transfer of immediately available funds within five Business Days after receipt of such notice.
(g) The Sellers’ Representative may resign at any time. Sellers (acting by majority of their respective Percentage Interests) shall designate a replacement Sellers’ Representative upon the second (2nd) anniversary resignation, death or disability causing him to be unable to serve, of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled by written notice to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderBuyer.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Party hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ the Sellers’ Representative as agent and attorney-in-fact for such Seller Party, with full power and authority to represent such Seller Party and such Seller Party’s successors and assigns with respect to all matters arising under this Agreement and the Indemnification Escrow Agreement and all actions taken by the Sellers’ Representative under this Agreement or the Indemnification Escrow Agreement will be binding upon each Seller Party and such Seller Party’s successors and assigns as if expressly ratified and confirmed in writing by them. Without limiting the generality of the foregoing, the Sellers’ Representative has full power and authority, on behalf of each Seller Party and such Seller Party’s successors and assigns, to (i) give and receive notices and communications for and on behalf of Seller Parties, (ii) execute and deliver all documents and agreements contemplated by this Agreement, each with such additions, modifications or deletions as the sole representative (the “Sellers’ Representative”Representative may deem necessary or advisable and appropriate, and to consummate all of the transactions contemplated in accordance therewith, (iii) agree to, negotiate and enter into, on behalf of the Seller Parties, any amendments, consents and waivers under this Agreement and any documents and agreements contemplated hereby pursuant to the terms set forth herein and therein, (iv) make and receive payments on behalf of the Seller Parties pursuant to the terms set forth in this Agreement and any documents and agreements contemplated hereby, (v) interpret the terms and provisions of this Agreement, (vi) take such actions required to administer the provisions this Agreement and all documents and agreements contemplated hereby, (vii) dispute or fail to dispute any Third-Party Claim or other claim under this Agreement or the Indemnification Escrow Agreement, (viii) negotiate and compromise any dispute that may arise under this Agreement or the Indemnification Escrow Agreement, and sign any releases or other documents with respect to any such dispute, and (ix) take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Each Seller Party will be deemed a party or a signatory to act as any agreement, document, instrument, or certificate for which the agent and Sellers’ Representative signs on behalf of such Seller for all purposes under this AgreementParty; provided, including for however, that the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionwill not have the power or authority to execute an Employment Agreement for, in connection with or on behalf of, any Seller Party. All decisions, actions and instructions by the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionwill be conclusive and binding on each Seller Party and no Seller Party shall have any right to object, in connection with dissent, protest or otherwise contest the amendment hereof in accordance with Section 9,13 same.
(Amendments b) The Seller Parties will pay, indemnify, and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking hold harmless Purchaser and its members, shareholders, partners, managers, officers, directors, employees, agents and Affiliates from and against any and all actions Losses that they may be necessary suffer or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity sustain as the representative result of such Seller, any and all notices, documents or certificates to be executed claim by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, any Person that an action taken by the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Sellerany Seller Party is not binding on, or enforceable against, any Seller Party. As Purchaser has the representative of Sellers, Sellers’ Representative shall act as right to rely conclusively on the agent for all Sellers instructions and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice decisions of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true to any actions taken by the Sellers’ Representative hereunder, and lawful attorney-in-fact and agent, with full power no Party will have any cause of substitution and resubstitution, action against Purchaser for any action taken by Purchaser in such Seller’s name, place and stead, in any and all capacities, in connection with reliance upon the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with instructions or decisions of the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personSellers’ Representative.
(c) Each Seller hereby agrees that: (i) in all matters in which action by The appointment of the Sellers’ Representative is required or permittedan agency coupled with an interest and is irrevocable, and any action taken by the Sellers’ Representative pursuant to the authority granted in this Section 12.17 is authorized to act effective and absolutely binding on behalf of such Seller, each Seller Party notwithstanding any dispute contrary action of or disagreement among direction from any Seller Party. The death or incapacity, or dissolution or other termination of existence, of any Seller Party does not terminate the authority and agency of the Sellers’ Representative (or successor thereto). The provisions of this Section 12.17 are binding upon the executors, heirs, legal representatives and successors of each Seller Party, and any references in this Agreement to any Seller Party means and includes the successors to such Seller Party’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. No Seller Party has any right to assert, defend or otherwise pursue any claims under Article 12 (it being understood that all such claims may be brought only by the Sellers’ Representative), and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or have no obligation to inquire of, any of acknowledge the Sellers, notwithstanding any knowledge on the part of Purchaser rights of any such dispute or disagreement; (ii) Seller hereunder except through exclusive interaction with the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion Promptly following the release of any portion of the Indemnification Escrow Amount to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and ’ Representative pursuant to the payment terms of the Indemnification Escrow Agreement, the Sellers’ Representative will cause such escrowed funds to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related be disbursed and paid to the Equity Interests)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 agree that the Sellers’ Representative shall be entitled to retain rely on the advice of counsel, accountants or other independent experts experienced in the matter at issue, and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) any error in judgment or other act or omission of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative such advice shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by in no event subject the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to Liability to the Seller Parties.
(f) Nothing set forth in this Section 12.17 will alter or affect, or be deemed or construed to alter or affect, the obligation of Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue pay any Indemnified Losses due to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.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 hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentacting alone, with full power of substitution and resubstitutionre-substitution, in such is hereby designated as the representative of the Sellers (“Seller’s nameRepresentative”) to serve, place and steadApollo LNG hereby acknowledges that Seller’s Representative shall serve, as the sole representative of the Sellers from and after the Effective Date with respect to the matters set forth in this Agreement. Seller’s Representative has accepted such designation as of the date hereof. Notwithstanding anything to the contrary contained in this Agreement, Seller’s Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against Sellers’ Representative. IT IS EXPRESSLY UNDERSTOOD AND AGREED BY SELLERS AND BY APOLLO AND APOLLO LNG, THAT ▇▇▇ ▇▇▇▇▇▇ SHALL HAVE NO PERSONAL LIABILITY WHATSOEVER TO APOLLO OR APOLLO LNG WHATSOEVER, WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER.
(b) Neptune and all capacitiesGolden Spread each hereby irrevocably appoints Seller’s Representative as the agent, in connection with the Transactions, granting unto said proxy and attorney-in-fact and agent for such party for all purposes of this Agreement, including full power and authority on such party’s behalf (i) to do and perform each and every act and thing requisite and take all actions which Seller’s Representative considers necessary to be done or desirable in connection with the sale defense, pursuit or settlement of any determinations relating to (x) the payment of the Purchase Price, and (y) any Claims for indemnification, including determinations to ▇▇▇, defend, negotiate, settle and compromise any such Claims for indemnification made by or against, and other dispute with Apollo or Apollo LNG pursuant to this Agreement, or any of the agreements or transactions contemplated hereby, (ii) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as he shall deem necessary or prudent in connection with the administration of the foregoing, (iii) to disburse to Neptune and Golden Spread all indemnification payments, (iv) to accept and receive notices to Sellers pursuant to this Agreement, and (v) to take all other actions and exercise all other rights which Seller’s Equity Interests Representative (in his sole discretion) considers necessary or appropriate in connection with this Agreement. Each of Neptune and Golden Spread acknowledges and agrees that such agency and proxy are coupled with an interest, and are therefore irrevocable without the other Transactions as fully consent of Seller’s Representative and shall survive the bankruptcy, dissolution or liquidation of either or both of Neptune or Golden Spread. All decisions and acts by Seller’s Representative shall be binding upon each of Neptune and Golden Spread, and neither Neptune nor Golden Spread shall have the right to all intents object, dissent and purposes as such Seller might protest or could do in personotherwise contest the same.
(c) Each In the event that the person authorized hereunder as Seller’s Representative shall resign or otherwise fail to act on behalf of Seller hereby agrees that: for any reason, a substitute Seller’s Representative shall be elected by prompt action of Neptune and Golden Spread. Apollo LNG and Apollo, however, shall be conclusively entitled to continue to rely upon the authority herein granted to ▇▇▇▇▇▇ as Seller’s Representative until such time as Neptune and Golden Spread shall have notified them, in writing, of his removal from office.
(id) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Seller’s Representative is authorized to act on behalf of such Seller, the Seller notwithstanding any dispute or disagreement among Neptune, Golden Spread, their officers, directors, employees, shareholders, beneficiaries or the Sellersfamilies thereof, and Purchaser Apollo LNG shall be entitled to rely on any and all action taken by Sellers’ Seller’s Representative under this Agreement without any liability to, or obligation to inquire ofmake any inquiry of Neptune or Golden Spread under any circumstances, even if Apollo LNG shall be aware of any actual or potential dispute or disagreement among the aforementioned. Apollo LNG is expressly authorized to rely on the genuineness of the Sellerssignature of Seller’s Representative and, notwithstanding any knowledge on the part of Purchaser upon receipt of any such dispute or disagreement; (ii) writing which reasonably appears to have been signed by a representative of Seller’s Representative may act upon the power and authority same without any further duty of Sellers’ Representative, inquiry as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share genuineness of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)writing.
(e) The Sellers agree Neither Seller’s Representative nor any agent employed by him shall be liable to Neptune or Golden Spread relating to the performance of his duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Sellers’ actions taken or not taken by Seller’s Representative constituted fraud or were taken or not taken willfully and in bad faith. Seller’s Representative shall be entitled to retain indemnified and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held harmless by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising Seller against all Claims paid or incurred in connection with any action, suit, proceeding or Claim to which Seller’s Representative is made a party by reason of the administration of his duties fact that it was acting as Seller’s Representative pursuant to this Agreement. The Sellers’ ; provided, however, that Seller’s Representative shall have the sole and absolute discretion not be entitled to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed indemnification hereunder to the Sellers extent it is finally determined in accordance with their Pro Rata Share, provided a court of competent jurisdiction by clear and convincing evidence that the Sellers’ actions taken or not taken by Seller’s Representative constituted actual fraud or were taken or not taken willfully in bad faith. Seller’s Representative shall be entitled protected in acting upon any notice, statement or certificate believed by it to continue be genuine and to hold have been furnished by the appropriate Person and not distribute in acting or refusing to act in good faith or any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereundermatter.
Appears in 1 contract
Sources: Transfer and Exchange Agreement (Apollo Resources International Inc)
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 Deliveries, Sellers hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ designate BC Sellers’ Representative LLC as the sole their representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Sellers, by approving this Agreement or by executing one of the Seller (other than Sellers’ Representative) hereby appoints Deliveries, shall authorize the Sellers’ Representative as such Seller’s true (i) to make all decisions relating to the determination of the Merger Consideration and lawful attorney-in-fact and agentthe Actual Closing Date Working Capital Amount, with full power (ii) to make all decisions relating to the distribution of substitution and resubstitutionany amounts payable or distributable to Sellers hereunder, in such Seller’s nameaccordance with this Agreement and the Escrow Agreement, place and stead, in any and (iii) to take all capacities, action necessary in connection with the waiver of any condition to the obligations of the Company to consummate the Contemplated Transactions, granting unto said attorney-in-fact and agent full power and authority or the defense and/or settlement of any Proceedings with respect to do and perform each and every act and thing requisite and necessary which any Buyer Indemnified Party may be entitled to be done indemnified pursuant to Section 9 hereof, (iv) to give and receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as is contemplated to be taken by or on behalf of Sellers by the terms of this Agreement, (vi) to take all other actions to be taken by or on behalf of Sellers in connection with herewith, (vii) to withhold funds to pay Seller-related expenses and obligations, (viii) to withhold additional funds as determined by the sale 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 such Seller’s Equity Interests and the other Transactions as fully Sellers in the event of a disbursement to all intents the Buyer Indemnified Parties due to any breach of the representations and purposes as warranties made by such Seller might or could do in persona Seller Delivery.
(c) Each Seller hereby agrees that: (i) in all matters in which action by In the event that the Sellers’ Representative is required dissolved, becomes unable to perform its responsibilities hereunder or permittedresigns 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 is authorized to act on behalf for all purposes of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments 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 by Sellers under this Agreement 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 made in proportion to binding upon all of the Pro Rata Share of Sellers, and each no Seller agrees shall have the right to and acknowledges its respective Pro Rata Share as object, dissent, protest or otherwise contest the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)same.
(e) The 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 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) all actions, decisions and instructions of the Sellers’ Representative shall be entitled to retain conclusive and not distribute to binding upon all of the Sellers at and no Seller shall have any cause of action against the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held Sellers’ Representative for any action taken, decision made or instruction given by the Sellers’ Representative and used under this Agreement, except for fraud or willful breach of this Agreement by the non-exclusive purposes of funding any expenses of Sellers’ Representative arising Representative;
(iii) the provisions of this Section 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the administration Contemplated Transactions;
(iv) the provisions of his duties 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 the Escrow Agreement to a Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, whether pursuant to this Agreement. The testamentary disposition, the laws of descent and distribution or otherwise;
(v) the Company Fees and Expenses shall include the sum of $500,000 to be paid to the Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been be used by the Sellers’ Representative for the payment of all costs and expenses incurred by the second (2nd) anniversary Sellers’ Representative in connection with the exercise by it of the Closing Date authority granted to it herein (including reasonable attorney fees and expenses and the fees and expenses of any accountants or other professional advisors retained by the Sellers’ Representative). From time to time after the Effective Time, Sellers’ Representative may distribute to Sellers, pro rata in accordance with their respective ownership of all shares of Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding immediately prior to the Effective Time, such portion of such sum as the Sellers’ Representative reasonably determines will not be needed for the payment of future costs and expenses. Any portion of such sum remaining after the final resolution of all claims asserted against, or asserted by or on behalf of, Sellers hereunder or under the Escrow Agreement and the final distribution to Sellers of all monies that are or could be distributable to them hereunder or under the Escrow Agreement shall be distributed to Sellers in their respective percentages based upon all shares of Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding; provided, however, that if the Sellers’ Representative incurs costs and expenses disproportionately due to a Seller’s breach of representations and warranties made by such Seller in one of the Seller Deliveries, such breaching Seller shall reimburse the Sellers’ Representative for the additional costs and expenses disproportionately incurred; and
(vi) they will indemnify and hold harmless the Sellers’ Representative, severally and not jointly, from and against any and all 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 taken by the Sellers’ Representative under or in connection herewith, unless such damages resulted solely from the bad faith of the Sellers’ Representative.
(f) All fees and expenses incurred by the Sellers’ Representative in excess of $500,000 shall be paid from any funds otherwise due to Sellers (including from the Escrowed Amount, if any, after such amount is released to Sellers’ Representative) in proportion to their ownership of all shares of Preferred Stock that are not converted at the Effective Time, plus the Fully Diluted Shares Outstanding as set forth in Section 2.4(a) of the Company Disclosure Schedule attached hereto and if no funds are available from the Escrowed Amount, then directly from Sellers pro rata in accordance with their Pro Rata Sharerespective ownership of all Shares of Preferred Stock that are not converted at the Effective Time, provided that plus the Sellers’ Representative shall be entitled Fully Diluted Shares Outstanding immediately prior to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Sellers’ Representative. (a) Each 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 true and lawful attorney-in-fact with the powers and authority as set forth in 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; (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 hereby appoints Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other 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 each Selling Party any amendment to 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 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.
(b) Sellers Representative shall be the sole and exclusive means of asserting or addressing any of the actions set forth in (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 time, agreement, consent, settlement, resolution or instruction of, Sellers Representative that is within the scope of Sellers Representative’s authority pursuant to Section 9.9(a) (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 sole representative (the “Sellers’ Escrow Agent shall be entitled to rely upon any Representative”) of such Seller ’s Decision as being a notice or communication to or by, or a decision, action, failure to act as within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Selling Party. Each of Purchaser and the agent Escrow Agent are unconditionally and on behalf of such Seller irrevocably relieved from any liability to any Person for all purposes under this Agreement, including for any acts done by them in compliance with any Representative’s Decision. A notice by Purchaser to the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions Sellers Representative shall constitute a notice to Purchaser in connection therewith; (ii) review each of the Statement; Selling Parties.
(iiic) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that The agency of Sellers Representative may be necessary or desirablechanged, and the Person serving as determined by Sellers’ Sellers Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary replaced from time to time, by the vote or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment consent of the costs and expenses incurred with respect to the Companies or such Owners of each Asset Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice a majority of the appointment of a successor Owner Pro Rata Share upon five (5) Business Daysnot less than ten days’ prior written notice to Purchaser.
(b) Each . A vacancy in the position of Sellers Representative may be filled by the vote or consent of the Owners of each Asset Seller (other than Sellers’ Representative) hereby appoints Sellers’ 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 Seller’s true successor is duly appointed and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized qualified to act on behalf hereunder. In the event of such Seller, notwithstanding any dispute or disagreement among a vacancy in the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability toposition 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 time, any obligation to inquire of, any provide notice to Sellers Representative will be deemed satisfied if such notice is delivered to each of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases Owners at their addresses last known to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this AgreementPurchaser.
(d) All payments to or expenses, if any, incurred by Sellers under this Agreement shall Representative in connection with the performance of his duties as Sellers Representative (the “Representative Expenses”) will be made in proportion to borne by the Pro Rata Share Owners. Sellers Representative may recover Representative Expenses directly from the Owners. No bond will be required of SellersSellers Representative, and each Seller agrees to and acknowledges Sellers Representative will not receive any compensation for its respective Pro Rata Share as services. The limitation of liability provisions of Section 9.9(e) shall survive the sole mechanism for determining its respective right, title and interest in and to resignation of the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)Sellers Representative.
(e) The Sellers agree Representative shall not, by reason of this Agreement, have a fiduciary relationship in respect of any Selling Party. Sellers Representative shall not be liable to any Selling Party for any action taken or omitted by the Sellers Representative hereunder or in connection herewith, other than any liability 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 the case of telecopies and electronic mail, to have been sent by the proper party or parties. Each Selling Party acknowledges and agrees that the Sellers’ Sellers Representative shall not be obligated to take any actions and shall be entitled to retain 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 distribute to the jointly indemnify Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for hold Sellers Representative harmless against any Losses incurred without gross negligence or willful misconduct on the non-exclusive purposes part of funding any expenses Sellers Representative and arising out of Sellers’ Representative arising or in connection with the acceptance or administration of his Sellers Representative’s duties pursuant hereunder. Each Selling Party acknowledges and agrees that such rights to this Agreement. The Sellers’ indemnity and to be held harmless shall apply without regard to the negligence of Sellers Representative.
(f) Sellers Representative shall have the sole reasonable access to information about Purchaser for purposes of performing Sellers Representative’s duties and absolute discretion to determine the use of such funds. Any portion of such funds exercising Sellers Representative’s rights hereunder, except that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date no Purchaser Indemnified Party shall be distributed 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 in accordance with their Pro Rata ShareRepresentative’s employees, provided that attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Sellers’ Person agrees to treat such information confidentially. If reasonably requested by P▇▇▇▇▇▇▇▇, Sellers Representative shall be entitled enter into a separate customary confidentiality agreement before being provided access to continue such information.
(g) The initial Sellers Representative h▇▇▇▇▇ accepts the appointment contained in this Agreement, and agrees to hold act as S▇▇▇▇▇▇ Representative and not distribute any funds which he, in his sole to discharge the duties and absolute discretion, deems prudent or necessary for payment responsibilities of anticipated expenses associated with Sellers Representative pursuant to the discharge terms of his duties hereunderthis Agreement.
Appears in 1 contract
Sources: Equity and Asset Purchase and Contribution Agreement (Concrete Partners Holding, LLC)
Sellers’ Representative. (a1) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as agent for and on behalf of Sellers and irrevocably authorizes Sellers’ Representative to act as each such Seller’s true agent with respect to all matters under this Agreement and lawful attorney-in-fact any Transaction Document to which a Seller is a party. Sellers’ Representative hereby accepts such appointment and agentagrees to perform the responsibilities set forth herein.
(2) Without limiting to generality of the foregoing, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent Sellers’ Representative shall have full power and authority to do make all decisions and perform each take all actions relating to the 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 every act remedies under this Agreement and thing requisite any Transaction Document to which a Seller is a party, including to receive payments (for the further benefit of the Sellers (other 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 take all actions necessary to be done or appropriate in connection with the sale judgment of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf for the accomplishment of such Seller, notwithstanding any dispute or disagreement among the Sellers, foregoing. All decisions and Purchaser shall be entitled to rely on any and all action actions taken by Sellers’ Representative under this Agreement without 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 rely upon any liability tosuch decision, act, consent, or obligation to inquire ofinstruction of Sellers’ Representative as being the decision, any act, consent or instruction of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; each Seller.
(ii3) the power and authority No bond shall be required of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall receive no compensation for its services.
(4) All references in this Agreement to decisions and actions to be entitled taken by the Sellers or any one of them, as the case may be, shall be deemed taken by a Seller or any one of them, as the case may be, if such decisions or actions are taken by Sellers’ Representative. All references in this Agreement to retain decisions and not distribute actions to be taken by Buyer and directed to the Sellers at or any one of them, as the Closing One Million Dollars case may be, shall be deemed directed to the Sellers or any one of them, as the case may be, if such decisions or actions are directed by Buyer to Sellers’ Representative.
($1,000,0005) In exercising or failing to exercise all or any of the Purchase Price to establish a reserve to be held by the powers conferred upon Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The hereunder or thereunder, Sellers’ Representative shall have 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 sole and absolute discretion only responsibility for any act or failure to determine the use of such funds. Any portion of such funds that have not been used 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 Representative.
(7) Buyer is hereby relieved from any liability to any Person for any acts done by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers 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, provided that 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 entitled to continue settle any Claim relating to hold and not distribute any funds which he, a breach of the representations or warranties set out in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderArticle 4.
Appears in 1 contract
Sources: Share Purchase Agreement (Internap Network Services Corp)
Sellers’ Representative. (a) Each Sellers’ Representative is designated by each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Party to serve as the sole representative (of the “Seller Parties with respect to the matters expressly set forth in Section 8.2.6(b) and 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 serve, the Stockholders currently holding more than fifty percent (50%) of such Seller the Shares as of the date hereof on a fully diluted basis will designate a single substitute agent to act serve as the agent successor Sellers’ Representative. The appointment of a successor will be effective on the date of Sellers’ Representative’s 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 on behalf of such attorney-in-fact for that Seller Party for all purposes under of this Agreement, including for the purposes offull power and authority on that Seller Party’s behalf: (i) acceptance of to consummate the transactions contemplated herein and any payments hereunder or under post-Closing matters, including making decisions and taking any Ancillary Agreement and delivery of wire instructions action with respect to Purchaser the matters set forth in connection therewithSection 2.4 (Post-Closing Adjustment); (ii) review to pay that Seller Party’s expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the Statementdate of this Agreement); (iii) delivering 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 under Sellers’ Representative in connection with the transactions contemplated by this Agreement (with any Ancillary Agreementexcess from the Sellers’ Representative Holdback Amount after payment of such post-Closing fees, expenses and other obligations to be disbursed to the Seller); (iv) determining whether to endorse and deliver any certificates or instruments representing the conditions to closing in Article VI (Conditions Precedent) have been satisfied LLC Interests and supervising the Closing, including waiving execute any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriatefurther instruments of assignment as Buyer will reasonably request; (v) taking any action that may be necessary or desirableto make, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment execute and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices deliver on behalf of such that Seller Party any amendment or waiver of, or in accordance with Section 9,04 (Notices); (viii) taking any connection with, this Agreement and all actions that may be necessary the other agreements or desirable, documents contemplated hereby as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and deliveringRepresentative, in Sellers’ Representative’s capacity as the representative sole discretion, may deem necessary or desirable; (vi) to take all other actions to be taken by or on behalf of such Seller, that Seller Party in connection herewith; (vii) to do each and every act and exercise any and all rights 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 all things and to take any and all action that Sellers’ Representative, in Sellers’ Representative’s sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other agreements and documents referred to herein or certificates 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 Company or any Seller Party, defending any claims by Buyer or third parties, consenting to, compromising or settling any of those claims, conducting negotiations with Buyer, the Company and their respective representatives regarding those claims, it being understood that Sellers’ Representative 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 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 executed held 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. Notwithstanding the foregoing, Sellers’ Representative shall consult with the ESOP Trustee in advance of any decision regarding a resolution of differences that may adversely affect the consideration paid for the LLC Interests.
(c) Buyer and the Acquired Companies may rely on any action taken or omission to act by Sellers’ Representative, on behalf of such Sellera Seller Party, pursuant to Section 8.2.6(b) above (an “Authorized Action”), and each Authorized Action is binding on each Seller Party as fully as if that Seller Party had taken the Authorized Action. Sellers’ Representative, in connection with this Agreementits capacity as Sellers’ Representative, has no liability to Buyer or the Ancillary Agreements 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 the Transactions; not jointly and severally, will indemnify and hold harmless Sellers’ Representative against all expenses (xi) granting any consent or approval on behalf of such Seller under this Agreement; including reasonable attorneys’ fees), judgments, fines and (xii) taking any amounts paid in settlement actually and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or reasonably incurred by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, in connection with any Proceeding to which Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice is made a party by reason of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints fact he is or was acting as Sellers’ Representative as such Seller’s true pursuant to the terms of this Agreement and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, expenses incurred by Sellers’ Representative in connection with the Transactionsperformance of Sellers’ Representative’s duties hereunder; provided, granting unto said attorney-in-fact that the ESOP Trust’s liability for such expenses shall be limited to and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with only payable from the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personSellers’ Representative Holdback Amount.
(cd) Each 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 hereby agrees that: 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.
(ie) Sellers’ Representative does not have by reason of this Agreement a fiduciary relationship in all matters respect of any Seller Party, except in which respect of amounts received hereunder on behalf of a Seller Party. Sellers’ Representative is not liable to any Seller Party for any action taken or omitted by Sellers’ Representative is required or permittedany agent employed by Sellers’ Representative hereunder or under any other document entered into in connection herewith, except that Sellers’ Representative is authorized not relieved of any liability imposed by Law for fraud or willful misconduct. Sellers’ Representative is not liable to act on behalf the Seller Parties for any apportionment or distribution of such Seller, notwithstanding any dispute or disagreement among the payments made by Sellers’ Representative in good faith, and Purchaser shall be entitled if any apportionment or distribution is subsequently determined to rely on 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 all action taken 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 without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at survive the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderDate.
Appears in 1 contract
Sellers’ Representative. (a) a. Each Seller Party hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true Seller Representative and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such SellerSeller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Seller Representative pursuant to this Agreement, notwithstanding any dispute or disagreement among including the Sellersexercise of the power to:
i. give and receive notices and communications;
ii. agree to, negotiate, enter into settlements and compromises of, and Purchaser 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 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 defense, payment or settlement of any claims for indemnification under this Agreement, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon each such Seller Party. No Seller Party shall have the right to object to, dissent from, protest or otherwise contest such decision or action. The provisions of this Section 8.14, including the power of attorney granted by this Section 8.14, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller Party, or by operation of Law, 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 no event shall Seller Representative resign or be 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, incapacity, resignation or removal of Seller Representative, a new Seller Representative shall be 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 the decisions and actions of the prior Seller Representative as described in Section 8.14(a) above.
d. The Seller Representative shall not be liable to Seller Parties for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved Fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by 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 action taken by Sellerslosses, 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 without (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 liability toportion thereof was primarily caused by the gross negligence, Fraud, intentional misconduct or obligation to inquire of, any bad faith of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Seller Representative, as described in this Agreementthe Seller Representative shall reimburse Seller Parties the amount of such indemnified Representative Loss attributable to such gross negligence, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminatedFraud, expired intentional misconduct or been fully performed; and (iii) if Sellers’ bad faith. The Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement Losses shall be made in proportion to the Pro Rata Share of Sellers, satisfied from Seller Parties jointly and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)severally.
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably appoints ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (acting jointly pursuant to Section 8.14(g)) as the sole representative (the “Sellers’ Representative”) of such Seller Representative to act as the agent and on behalf of such Seller for all purposes Sellers regarding any matter relating to or under this Agreement, including for the purposes of: Escrow Agreement or the other Ancillary Documents (collectively, the “SR Agreements”), and Sellers’ Representative shall have full power and authority on each Seller’s behalf concerning, without limitation, (i) acceptance making decisions with respect to the determination of any payments hereunder or Final Purchase Price, Closing Net Working Capital, Closing Cash and Cash Equivalents, Closing Indebtedness, Seller Expenses and other matters under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewithSection 2.4(b); (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing Closing in Article VI (Conditions Precedent) X have been satisfied and supervising the Closing, including waiving any such condition if condition, as determined by Sellers’ Representative, in his its sole discretion, determines that such waiver is appropriate; (viii) taking any action that may be necessary or desirable, as determined by Sellers’ Representative Representative, in his its sole discretion, in connection with the termination hereof of this Agreement in accordance with Article VII (Termination, Amendment and Waiver)XI or any other SR Agreement; (viiv) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative Representative, in his its sole discretion, in connection with the amendment hereof of this Agreement in accordance with Section 9,13 (Amendments and Waivers)12.1 or any other SR Agreement; (viiv) accepting notices on behalf of such Seller Sellers in accordance with Section 9,04 (Notices)12.4 or any other SR Agreement; (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (xvi) executing and delivering, in on behalf of Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary SR Agreements and the Transactionstransactions contemplated thereby; and (xivii) granting any consent consent, waiver or approval on behalf of such Seller Sellers under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Sellerthe SR Agreements. As the representative of SellersSellers under the SR Agreements, Sellers’ Representative shall act as the agent for all Sellers and Sellers, shall have authority to bind each Seller such Person in accordance with this Agreementthe SR Agreements, and Purchaser Buyer may conclusively rely on such appointment and authority until in all respects (subject to Section 8.14(g)). Buyer may conclusively rely upon, without independent verification or investigation, all decisions made by Sellers’ Representative (subject to Section 8.14(g)) in connection with the receipt SR Agreements in writing and signed by an authorized person of notice of Sellers’ Representative. All decisions and actions by Sellers’ Representative (to the appointment of a successor extent authorized by this Agreement, including pursuant to Section 8.14(g)) shall be binding upon five (5) Business Days’ prior written notice all Sellers, and no Seller shall have the right to Purchaserobject, dissent, protest or otherwise contest the same.
(b) Each Seller acknowledges and agrees that Sellers’ Representative shall retain the Seller Reserve Amount for the purpose of paying any fees, costs and expenses incurred by Sellers’ Representative in connection with the performance of its obligations under this Agreement and each of the documents to be executed in connection with the transactions contemplated hereby. Each Seller further acknowledges and agrees that Sellers’ Representative shall have the right, but not the obligation, exercisable in its sole discretion, to distribute to any Seller at any time such Seller’s pro rata portion of the Seller Reserve Amount upon the delivery by such Seller to Sellers’ Representative (in favor of Sellers’ Representative on behalf of such Seller) of (i) a letter of credit or (ii) a written undertaking, in either case, in support of such Seller’s obligations hereunder and with such form and substance acceptable to Sellers’ Representative, in its sole discretion. Notwithstanding the foregoing, each of Sellers acknowledges and agrees that there can be no assurances that any of the Seller Reserve Amount will be paid or disbursed to Sellers.
(c) Sellers’ Representative shall be entitled to retain counsel and to incur such fees, costs and expenses as Sellers’ Representative deems to be necessary or appropriate in connection with the performance of its obligations under this Agreement and each of the documents to be executed in connection with the transactions contemplated hereby. Sellers’ Representative shall be reimbursed for all such fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) first from the Seller Reserve Amount and, to the extent that such fees, costs and expenses exceed such amount, then on a pro rata basis from Sellers. Each Seller agrees to indemnify Sellers’ Representative and its partners, members, officers, directors, employees, agents and other than representatives for its respective pro rata share of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the reasonable fees and expenses of any legal counsel retained by Sellers’ Representative) or disbursements of any kind or nature whatsoever which may at any time be imposed on, or incurred by or asserted against Sellers’ Representative or any of its Affiliates, partners, members, officers, directors, employees, agents and other representatives in any way relating to or arising out of or in connection with the acceptance or administration of Sellers’ Representative’s duties hereunder or under the Escrow Agreement or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Seller shall be liable for any of the foregoing to the extent they arise from Sellers’ Representative’s active fraud or willful misconduct as construed under the Laws of the State of Delaware and as determined in a final, non-appealable order of a court of competent jurisdiction. For purposes of Section 8.14 of this Agreement and for the avoidance of doubt, “active fraud” does not include constructive fraud, equitable fraud, promissory fraud or negligent misrepresentation or omission or any form of fraud based on recklessness or negligence.
(d) Each Seller hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power powers of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactionstransactions contemplated by the SR Agreements, granting unto said attorney-in-fact and agent agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions Acquired Securities, as fully to all intents and purposes as such Seller might or could do in person.
(ce) Sellers’ Representative, in its capacity as Sellers’ Representative, shall have no liability to Buyer for any default under this Agreement by any other Seller. Except for active fraud or willful misconduct on its part as construed under the Laws of the State of Delaware and as determined in a final, non-appealable order of a court of competent jurisdiction, Sellers’ Representative shall have no liability to any other Seller under this Agreement for any action or omission by Sellers’ Representative on behalf of the other Sellers.
(f) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required acknowledges that they have had the opportunity to consult with independent legal counsel, whether or permittednot any such Seller chose to do so, Sellers’ Representative is authorized to act on behalf of regarding such Seller, notwithstanding any dispute or disagreement among the Sellers, ’s rights and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative obligations under this Agreement without any liability toAgreement, or obligation to inquire of, any including for the avoidance of doubt the appointment of the Sellers’ Representative, notwithstanding any knowledge on and that such Seller fully understands the part terms of Purchaser this Agreement and acknowledges that the terms hereof, including for the avoidance of any such dispute or disagreement; (ii) doubt the power and authority appointment of Sellers’ Representative, as described are reasonable and necessary and such terms are valid, binding and enforceable in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreementaccordance with their terms.
(dg) All payments to or by Sellers under this Agreement shall be made in proportion For the avoidance of doubt and notwithstanding anything herein to the Pro Rata Share of Sellerscontrary, ZMC Seller and each Seller agrees to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby covenant and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the all decisions and actions of Sellers’ Representative shall be entitled made jointly and unanimously by both ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the Parties hereby agree that any references in this Agreement to retain decisions and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held actions by the Sellers’ Representative must require the written consent (email to suffice) or signature of both ZMC Seller and used for the non-exclusive purposes of funding any expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ZMC Seller shall be permitted to assign its duties and obligations as Sellers’ Representative arising hereunder to any Affiliate of ZMC Seller upon written notice to the other Parties, and such Affiliate assignee of ZMC Seller shall (i) replace ZMC Seller in connection with ZMC Seller’s role as Sellers’ Representative hereunder upon such assignment by ZMC Seller and (ii) be bound by the administration terms and provisions in this Agreement applicable to Sellers’ Representative (and, for the avoidance of doubt, the first sentence of this Section 8.14(g) shall apply to such Affiliate assignee, mutatis mutandis). For the avoidance of doubt, any assignment by ZMC Seller of its duties and obligations as Sellers’ Representative hereunder shall not affect the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or his duties obligations (including pursuant to this Agreement. The Section 8.14(g)) as Sellers’ Representative hereunder, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby covenants and agrees that in the event of any such assignment by ZMC Seller, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ obligations to act jointly and unanimously with ZMC Seller as set forth in the first sentence of this Section 8.14(g) shall have the sole and absolute discretion apply to determine the use such Affiliate assignee of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata ShareZMC Seller, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereundermutatis mutandis.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Equity Holder hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ designates Logistics Holding as the sole representative (the “Sellers’ Representative”) of such Seller ” to act as the agent execute any and all instruments or other documents on behalf of such Seller for Equity Holder, and to do any and all purposes under other acts or things on behalf of such Equity Holder, which the Sellers’ Representative may deem necessary or advisable, or which may be required pursuant to this Agreement, including for the purposes of: (i) acceptance of any payments hereunder Escrow Agreement or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretionotherwise, in connection with the termination hereof in accordance with Article VII consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (Termination, Amendment and Waiver); (vii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with execute the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices Escrow Agreement on behalf of such Seller in accordance with Section 9,04 each Equity Holder, (Notices); (viiiii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred act for each Equity Holder with respect to any Purchase Price Adjustment, (iii) give and receive notices and communications to or from Buyer and/or the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing Escrow Agent relating to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by extent that this Agreement or the Escrow Agreement expressly contemplates that any Ancillary Agreement to such notice or communication shall be performed given or received by such Seller Equity Holders individually), (iv) authorize the release or delivery to Buyer of all or a portion of the Escrow Amount or Holdback Amount in satisfaction of indemnification claims by Buyer or any 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 relating to this Agreement or the Escrow Agreement, and (vi) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf for the accomplishment of such Sellerthe foregoing. As the representative of Sellers, The Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Sellereach Equity Holder with respect to the disposition, notwithstanding any dispute settlement or disagreement among other handling of all claims under this Agreement and the Escrow Agreement and all rights or obligations arising under this Agreement and the Escrow Agreement. The Equity Holders shall be bound by all actions taken and documents executed by the Sellers’ Representative in connection with this Agreement and the Escrow Agreement, and Purchaser Buyer and other Buyer Indemnified Parties shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any decision of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have receive no compensation for its services. Notices or communications to or from the sole Sellers’ Representative shall constitute notice to or from each Equity Holder.
(b) In performing the functions specified in this Agreement, the Sellers’ Representative shall not be liable to any Equity Holder in the absence of gross negligence or 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 absolute discretion not jointly, indemnify and hold harmless the Sellers’ Representative from and against any Loss 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 its duties hereunder. If not paid directly to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall Equity Holders, such Losses may be distributed to the Sellers in accordance with their Pro Rata Share, provided that recovered by the Sellers’ Representative shall be entitled from the Escrow Amount or Holdback Amount otherwise distributable to continue to hold the Equity Holders (and not distribute distributed or distributable to any funds which heBuyer Indemnified Party or subject to a pending indemnification claim of any Buyer 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, in his sole at the time of distribution, and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with such recovery will be made from the discharge of his duties hereunderEquity Holders according to their respective Pro Rata Percentage.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative Macquarie Infrastructure Partners Inc. (the “Sellers’ RepresentativeMIP Inc.”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentrepresentative, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent (as such, the “Sellers’ Representative”), with full power of substitution to act in the name, place and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale stead of such Seller’s Equity Interests Seller with respect to the Securities Purchase and the other Transactions as fully to all intents Merger and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such SellerSeller in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, notwithstanding and to execute all such documents, as such Sellers’ Representative shall deem necessary or appropriate in conjunction with any dispute of the transactions contemplated by this Agreement, including the power:
(i) to take any action required or disagreement among permitted to be taken by the Sellers’ Representative as expressly set forth in this Agreement, including to make all determinations in respect of the Base Purchase Price and Final Purchase Price and the portions thereof payable to the Sellers and the Management Holders in accordance with Article 2;
(ii) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of Sellers to consummate the Securities Purchase and the Merger;
(iii) to negotiate, execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the Securities Purchase and the Merger (it being understood that such Sellers, shall execute and deliver any such documents which the Sellers’ Representative agrees to execute);
(iv) to terminate this Agreement if Sellers are entitled to do so;
(v) 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, including service of process in connection with arbitration; and
(vi) 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 which the Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as such Sellers could do if personally present. Notwithstanding the foregoing, nothing in this Section 10.14 shall be deemed to alter the Sellers’ obligations with respect to the Buyer set forth in this Agreement, regardless of any acts or omissions of the Sellers’ Representatives, including in the case of fraud, gross negligence or bad faith on the part of the Sellers’ Representative.
(b) The Sellers’ Representative will not be liable for any act taken or omitted by it as permitted under this Agreement, except if such act is taken as Sellers’ Representative or omitted in bad faith or gross negligence. The Sellers’ Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) The Sellers agree, severally but not jointly, to indemnify (in accordance with their respective direct and indirect ownership of 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 entitled discharged from its duties and obligations hereunder but shall continue to rely on have the benefits of the indemnification set forth in this Section 10.14. Notwithstanding any and 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 action 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 without any liability to, or obligation to inquire of, any shall survive the Closing and/or termination of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(ef) The Sellers agree that grant of authority to the Sellers’ Representative provided for in this Section 10.14, (i) is coupled with an interest and shall be entitled to retain irrevocable and not distribute to survive the Sellers at death, incompetency, bankruptcy or liquidation of any Seller, and (ii) shall survive the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderClosing.
Appears in 1 contract
Sources: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under By approving this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingtransactions contemplated hereby, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, Party hereby irrevocably authorizes and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true Seller Party's representative and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such SellerSeller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the Ancillary Documents, notwithstanding any dispute or disagreement among including, but not limited to, the Sellersexercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and Purchaser comply with orders or otherwise handle any other matters described in Section 2.04;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any 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, and on any other action taken or purported to be taken on behalf of any Seller Party by Sellers’ Representative, as being fully binding upon such Seller Party. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Seller Parties. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon each such Seller Party. No Seller Party shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 1.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller Party or by operation of Law.
(c) Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Seller Parties; provided, however, in no event shall Sellers’ Representative resign or be removed without the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative shall be appointed by the vote or written consent of a majority of the Seller Parties. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer and Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received; provided, that until such notice is received, Buyer and Parent shall be entitled to rely on the decisions and actions of the prior Sellers’ Representative.
(d) Sellers’ Representative shall not be liable to the Seller Parties for actions taken pursuant to this Agreement or any Ancillary Document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and not jointly, indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any and all action taken by losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Sellers’ Representative under this Agreement without any liability toAgreement, in each case as such losses are suffered or obligation to inquire ofincurred; provided, any of that in the Sellers, notwithstanding any knowledge on the part of Purchaser of event it is finally adjudicated that any such dispute loss or disagreement; (ii) any portion thereof was primarily caused by the power and authority gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to reimburse Seller Parties the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use amount of such funds. Any portion of indemnified losses attributable to such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Sharegross negligence, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which hefraud, in his sole and absolute discretion, deems prudent intentional misconduct or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderbad faith.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller The Sellers hereby appoints irrevocably appoint ▇▇▇▇▇ ▇▇▇▇▇ as the Sellers’ Representative and authorize the Sellers’ Representative to take, and consent to the Sellers’ Representative taking, the following actions for and on behalf of each of them following Closing: (i) to give and receive notices and communications; (ii) to take any and all actions relating to claims to hold harmless, indemnify, compensate, reimburse or pay any Purchaser Indemnitee hereunder; (iii) to authorize delivery to Purchaser of a portion of the Escrow Fund in satisfaction of claims by the Purchaser Indemnitees; (iv) to object to such deliveries; (v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, such claims; (vi) to take all other actions contemplated for the Sellers’ Representative in this Agreement and the Tax Covenant and in the Escrow Agreement; (vii) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents and agreements contemplated by this Agreement and the Tax Covenant (including the Escrow Agreement); (viii) to make all elections or decisions contemplated by this Agreement and any other documents and agreements contemplated by this Agreement and the Tax Covenant (including the Escrow Agreement); (ix) to amend, modify or waive provisions of this Agreement and the Tax Covenant (subject to Section 9.2 and Section 9.3) or any of the other related agreements to which the Sellers’ Representative is a party; (x) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Sellers’ Representative in complying with the Sellers’ Representative’s duties and obligations; and (xi) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Purchaser shall be entitled to deal exclusively with the Sellers’ Representative on all such matters relating to this Agreement and the Tax Covenant (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by the Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as being fully binding upon such holder. Each Seller hereby undertakes to Purchaser that the Sellers’ Representative are irrevocably authorized by the Sellers to receive payment on the Sellers’ behalf of all payments to be made by Purchaser to the Sellers under this Agreement and the Tax Covenant and each Seller further acknowledges and agrees that the receipt by the Sellers’ Representative will be deemed good and sufficient discharge for Purchaser in respect of its obligations to pay any such amounts such that Purchaser shall not be concerned to see application thereof. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from each of the Sellers. Any decision or action by the Sellers’ Representative hereunder, including any agreement between the Sellers’ Representative and Purchaser relating to the defense, payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such Seller. No Seller shall have the right to object to, dissent from, protest or otherwise contest the same.
(b) If the Sellers’ Representative shall for any reason become unable to fulfill his responsibilities as the agent of the Sellers, then ▇▇▇▇▇ as ▇’▇▇▇▇▇ shall, within ten (10) days after the sole date upon which the Sellers’ Representative becomes unable to fulfill his responsibilities, appoint a successor representative (reasonably satisfactory to Purchaser. Any such successor shall become the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller ” for all purposes under this Agreement, including hereunder. If for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver reason there is appropriate; (v) taking any action that may be necessary or desirable, as determined by no Sellers’ Representative in his sole discretionat any time, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect references herein to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled deemed to retain and not distribute refer to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder▇▇▇▇▇ ▇’▇▇▇▇▇.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Indemnifying Party hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ Shareholder Representative Services LLC as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreementhis, including for the purposes of: (i) acceptance of any payments hereunder her or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingits agent, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentas the Sellers’ Representative for and on behalf of the Seller Indemnifying Parties to give and receive notices and communications, to authorize the reduction of the Escrow Fund in satisfaction of claims by any Buyer Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with full power orders of substitution courts with respect to such claims, to assert, negotiate, enter into settlements and resubstitutioncompromises of, and bring suit and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Party against the Company or the Seller Indemnifying Parties or any dispute between any Buyer Indemnified Party and any such Seller Indemnifying Party, in such Seller’s nameeach case relating to this Agreement or the transactions contemplated hereby, place and stead, in any and to take all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: actions that are either (i) necessary or appropriate in all matters in which action by the judgment of the Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among for the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any accomplishment of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute foregoing or disagreement; (ii) specifically mandated by the power and authority terms of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers including under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases Section 2.5. Such agency may be changed by the Seller Indemnifying Parties from time to function in its capacity as such for any reason whatsoever, within time upon not less than thirty (30) daysdays prior written notice to Buyer; provided, Sellers shall have the right to appoint a Seller to act as Sellers’ Representativehowever, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative may not be removed unless holders of a two-thirds interest of the Escrow Amount agree to such removal and to the identity of the substituted agent. The Sellers’ Representative may resign at any time upon not less than thirty (30) days prior written notice in the event of circumstances rendering it impracticable for it to continue to effectively serve. A vacancy in the position of Sellers’ Representative may be filled by the holders of a majority in interest of the Escrow Amount. No bond shall be entitled required of the Sellers’ Representative. After the Closing, notices or communications to retain or from the Sellers’ Representative shall constitute notice to or from the Seller Indemnifying Parties.
(b) The Sellers’ Representative shall not be liable to any Seller Indemnifying Party for any act done or omitted hereunder as Sellers’ Representative while acting in good faith and without gross negligence or willful misconduct (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Seller Indemnifying Parties shall, severally (in accordance with their Indemnity Pro Rata Percentage) and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by jointly, indemnify the Sellers’ Representative and used for hold the non-exclusive purposes of funding any expenses of Sellers’ Representative harmless against any loss, liability, damage, claim, penalty, fine, forfeiture, action, fee, cost or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (“Sellers’ Representative Expenses”) arising out of or in connection with the administration Sellers’ Representative’s execution and performance of his duties pursuant to this Agreement. The Agreement and any agreements ancillary hereto, in each case as such Sellers’ Representative shall Expense is suffered or incurred; provided, that in the event that any such Sellers’ Representative Expense is finally adjudicated to have been directly caused by the sole and absolute discretion to determine gross negligence, bad faith or willful misconduct of the use Sellers’ Representative, the Sellers’ Representative will reimburse the Seller Indemnifying Parties the amount of such funds. Any portion of indemnified Sellers’ Representative Expense to the extent attributable to such funds that have gross negligence, bad faith or willful misconduct.. If not been used by paid directly to the Sellers’ Representative by the second Seller Indemnifying Parties, such Sellers’ Representative Expenses may be recovered by the Sellers’ Representative first, from the Expense Fund, second, from the Escrow Amount at such time as such remaining amounts are otherwise distributable to the Seller Indemnifying Parties (2ndand not distributed or distributable to a Buyer Indemnified Parties or subject to a pending indemnification claim of a Buyer Indemnified Party) anniversary pursuant to the terms hereof and of the Closing Date shall Escrow Agreement, at the time of distribution, and such recovery will be distributed made from the Seller Indemnifying Parties according to the Sellers in accordance with their respective Indemnity Pro Rata SharePercentage; provided, provided that while this section allows the Sellers’ Representative to be paid from the aforementioned sources, this does not relieve the Seller Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Seller Indemnifying Parties or otherwise. The Seller Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Sellers’ Representative or the termination of this Agreement. A decision, act, consent or instruction of the Sellers’ Representative shall constitute a decision of the Seller Indemnifying Parties and shall be entitled final, binding and conclusive upon the Seller Indemnifying Parties; 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 Seller Indemnifying Parties. Buyer is hereby relieved from any liability to continue to hold and not distribute any funds which heperson for any acts done by it in accordance with such decision, in his sole and absolute discretionact, deems prudent consent or necessary for payment instruction of anticipated expenses associated with the discharge of his duties hereunderSellers’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn National Gaming Inc)
Sellers’ Representative. (a) Each Seller of the Sellers hereby ----------------------- appoints ▇▇▇▇▇▇ Capital Corporation ("Sellers' Representative") or its ----------------------- designee (as appointed in writing), as the agent, proxy, and attorney- in-fact for the Sellers for all purposes under this Agreement (including without limitation full power and authority to act on the Sellers' behalf) to take any action, should it elect to do so in its sole discretion, (i) to consummate the transactions contemplated under this Agreement, (ii) in the event of such consummation, to receive on behalf of the Sellers the Cash Consideration, provided, that, -------- ---- ▇▇▇▇▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller & ▇▇▇▇▇▇▇▇ LLP may, pursuant to act as the agent and this Section 14.6, receive on behalf of the Individual Sellers each of such Seller for all purposes under this AgreementIndividual Seller's Closing Payment Percentage, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review net of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingattributable Seller's Percentage of expenses, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect relating to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests Shares to be sold by such Seller hereunder; (x) executing Individual Sellers hereunder and deliveringthe Company may, in Sellers’ Representative’s capacity as pursuant to this Section 14.6, receive on behalf of the representative Individual Sellers each of such Seller's Closing Payment Percentage, any and all noticesnet of the attributable Seller's Percentage of expenses, documents or certificates relating to the Options to be executed sold by such Individual Seller hereunder, (iii) to receive and pay out of the Cash Consideration the Seller's Percentage attributable to each Seller of all expenses incurred by or on behalf of the Sellers in connection with the transactions contemplated by this Agreement and to pay to each of the Sellers his or its Closing Payment Percentage, 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’ Representative' 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 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 settle any or all such claims in its sole discretion on behalf of any or all the Sellers and exercise any or all rights which any or all of the Sellers are permitted or required to exercise under this Agreement, and (v) to execute and deliver, should it elect to do so in its sole discretion, on behalf of such Seller, in connection with any or all of the Sellers any or all amendments to this Agreement, the Ancillary Agreements Agreement and the Transactions; (xi) granting to take any consent or approval all other actions to be taken by or on behalf of such Seller 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 (xii) taking deliver any and all other actions and doing any and all other things provided in or contemplated by amendment to this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative under clause (v) above on behalf of such SellerSellers (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 ▇▇▇▇▇▇ ▇. As the representative of Sellers▇▇▇▇▇▇, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than the ----------- Sellers’ Representative) hereby appoints Sellers’ ' Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in shall have no obligation to conduct any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might defense or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which settle any claim or enter into any amendment or take any action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act whatsoever on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative Seller under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed Section 14.6 or otherwise ceases to function 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 for 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 reason whatsoeverBCC Seller. Each of the Sellers hereby agrees not to assert any claim against, within thirty (30) daysand to indemnify and hold harmless the Sellers' Representative from and against any and all Losses incurred by, Sellers shall have the right 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, relating to appoint a Seller to act Sellers' Representative's capacity as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to ' Representative other than such claims or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that Losses resulting from the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent ' Representative's gross negligence or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderwilful misconduct."
Appears in 1 contract
Sellers’ Representative. (a) Each By executing this Agreement or a Joinder or by executing and delivering a Letter of Transmittal, each Seller hereby appoints ▇M▇▇▇ ▇▇▇▇▇ (and M▇▇▇ ▇▇▇▇▇ hereby consents to such appointment) as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent agent, proxy and on behalf of such attorney-in-fact for each Seller for all purposes under of this AgreementAgreement and the Additional Agreements, including for the purposes of: full power and authority on each such Seller’s behalf to (i) acceptance of to give and receive notices and communications to or by the Purchaser for any payments hereunder or purpose under any Ancillary this Agreement and delivery of wire instructions to Purchaser in connection therewith; the Additional Agreements, (ii) review to agree to, negotiate, enter into settlements and compromises of and demand mediation and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article XII, the Statement; Post-Closing Adjustment, or other disputes arising under or related to this Agreement or the Additional Agreements, (iii) delivering to enter into and deliver the Escrow Agreement on behalf of each of the Sellers and to disburse any funds or shares of Purchaser Common Stock received hereunder or under any Ancillary pursuant to the Escrow Agreement; , (iv) determining whether to authorize or object to delivery to the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising Purchaser of the ClosingEscrow Fund, including waiving or any such condition if Sellers’ Representativeportion thereof, in his sole discretionsatisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, determines that such waiver is appropriate; (v) taking to act on behalf of Sellers in accordance with the provisions of the Agreement and the Additional Agreements, the securities described herein and any action that may be necessary other document or desirable, as determined by Sellers’ Representative in his sole discretion, instrument executed in connection with the termination hereof in accordance with Article VII (TerminationAgreement and the Transactions, Amendment and Waiver); (vi) taking to endorse and deliver any and all actions that may be necessary certificates or desirable, instruments of assignment as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers)Purchase shall reasonably request; (vii) accepting notices to execute and deliver on behalf of each such Seller in accordance with Section 9,04 (Notices)any amendment, waiver, ancillary agreement and documents on behalf of any Seller that the Sellers’ Representative deems necessary or appropriate; and (viii) taking to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing and to do each and every act and exercise any and all actions that may be necessary rights which the Sellers collectively are permitted or desirable, as determined by required to do or exercise under this Agreement. Purchaser is expressly authorized to rely on the genuineness of the signature of Sellers’ Representative in his sole discretionand, in connection with the payment upon receipt of the costs and expenses incurred with respect any writing which reasonably appears to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed have been signed by Sellers’ Representative, Purchaser may act in good faith upon the same without any further duty of inquiry as to the genuineness of the writing.
(b) Such agency may be changed by the Sellers from time to time upon no less than twenty (20) days prior written notice to the Purchaser, provided, however, that the Sellers’ Representative may not be removed unless holders of at least 51% of all of the Transferred Equity Interests on behalf an as-if converted basis outstanding immediately prior to the Transactions agrees to such removal. Any vacancy in the position of such SellerSellers’ Representative may be filled by approval of the holders of at least 51% of all of the Transferred Equity Interests on an as-if converted basis outstanding immediately prior to the Transactions. Any removal or change of the Sellers’ Representative shall not be effective until written notice is delivered to Purchaser. No bond shall be required of the Sellers’ Representative, in and the Sellers’ Representative shall not receive any compensation for his services. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from the Sellers.
(c) A decision, act, consent or instruction of the Sellers’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Sellers of the Acquired Companies and shall be final, binding and conclusive upon each of the Sellers. In connection with this Agreement, the Ancillary Agreements Escrow Agreement and the Transactions; (xi) granting any consent instrument, agreement or approval on behalf of such Seller under this Agreement; document relating hereto or thereto, and (xii) taking any and in exercising or failing to exercise all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by of the powers conferred upon the Sellers’ Representative on behalf of such Seller. As hereunder (i) the representative of Sellers, Sellers’ Representative shall incur no responsibility whatsoever to any Sellers by reason of any error in judgment or other act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, or omission performed or omitted hereunder or in connection with the TransactionsEscrow Agreement or any such other agreement, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every instrument or document, excepting only responsibility for any act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized failure to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellerswhich represents willful misconduct, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain 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 any Sellers. Each Seller shall severally (in accordance with their ownership percentages in the Acquired Companies as set forth on Schedule 13.14(c)), and not distribute to jointly, indemnify the Sellers at Sellers’ Representative, against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the Closing One Million Dollars amount of any judgment against them, of any nature whatsoever ($1,000,000including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever) (“Sellers’ Representative Losses”), arising out of the Purchase Price to establish a reserve or in connection with any actions taken or omitted to be held taken by the Sellers’ Representative and used for pursuant to the non-exclusive purposes terms of funding this Agreement or the Escrow Agreement (including any expenses claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Sellers’ Representative arising hereunder, or under the Escrow Agreement or otherwise), in connection with the administration of his duties pursuant to this Agreement. The each case as such Sellers’ Representative shall have the sole and absolute discretion Loss is incurred or suffered. If not paid directly to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall Sellers, any such Sellers’ Representative Loss may be distributed to the Sellers in accordance with their Pro Rata Share, provided that recovered by the Sellers’ Representative shall from the Escrow Fund otherwise distributable to the Sellers pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Sellers’ Representative to the Escrow Agent; provided that while this section allows the Sellers’ Representative to be entitled paid from the Escrow Fund, this does not relieve the Sellers from their obligation to continue promptly pay such Sellers’ Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent it at law or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderotherwise.
Appears in 1 contract
Sources: Plan of Merger and Equity Purchase Agreement (RumbleON, Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under Seller, by executing this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement irrevocably constitutes and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ appoints [Sellers Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity ] as the representative of such SellerSeller Representative and his successors, any and all noticesacting as hereinafter provided, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power in name, place and authority to do and perform each and every act and thing requisite and necessary to be done stead in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully authority granted to all intents and purposes as such Seller might or could do in person.
(c) Representative pursuant to this Section 10.17, and acknowledges that such appointment is coupled with an interest. Each Seller has executed and delivered a limited durable power of attorney in the form of Annex A to this Agreement granting to the Seller Representative the powers set forth in this Section 10.17. By executing this Agreement under the heading Seller Representative, the Seller Representative hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized accepts his appointment and authorization to act as Seller Representative as attorney-in-fact and agent on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Sharethe terms of this Agreement, provided and (ii) agrees to perform his obligations under, and otherwise comply with, this Section 10.17. (b) Each Seller by such appointment (i) authorizes the Seller Representative subsequent to the date hereof (A) to give and receive notices and communications to or from Buyer relating to this Agreement; (B) to act on such Seller’s behalf with respect to any and all matters affecting such Seller hereunder, including under Article II, Article VII, Article VIII, Article IX and Article X, including giving and receiving all notices and communications to be given or received with respect to any such matters, (C) to deliver, and object any amounts reflected in, the Preliminary Closing Statement and the Final Closing Statement, (D) to authorize deliveries to Buyer of cash in satisfaction of claims for indemnification pursuant to Article VIII; (E) to initiate or to refrain from initiating, or to dispute or to refrain from disputing, any indemnity or other claim under this Agreement; (F) to negotiate, compromise and resolve any Dispute that the Sellers’ Representative shall be entitled may arise under this Agreement; (G) to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent exercise or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.refrain from exercising remedies available under Exhibit 2.1
Appears in 1 contract
Sellers’ Representative. (a) Each By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the sole representative his, her or its true and lawful agent and attorney-in-fact (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to act in such Seller’s name, place and steadstead with respect to all transactions contemplated by and all terms and provisions of this Agreement, and to act on such Seller’s behalf in any dispute, litigation or arbitration involving this Agreement, and to do or refrain from doing all capacitiessuch further acts and things, and execute all such documents as Sellers’ Representative shall deem necessary or appropriate in connection with the Transactionstransactions contemplated by this Agreement, granting unto said attorney-in-fact including, without limitation, the power to:
(i) the right to receive payment from Buyer on behalf of Sellers as contemplated by Section 1.1(c) above and agent full power then distribute such payment in the proportions and authority amounts set forth on Exhibit A in the column labeled “Aggregate Proceeds at Closing”;
(ii) waive any condition to do the obligations of such Seller to consummate the transactions contemplated by this Agreement;
(iii) execute and perform each deliver all ancillary agreements, certificates and every act documents, and thing requisite to make representations and warranties therein, on behalf of such Seller which Sellers’ Representative deems necessary to be done or appropriate in connection with the sale consummation of the transactions contemplated by this Agreement;
(iv) do or refrain from doing any further act or deed on behalf of such Seller’s Equity Interests and Seller which Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the other Transactions subject matter of this Agreement, as fully to all intents and purposes completely as such Seller might or could do if personally present;
(v) amend this Agreement on behalf of Sellers; and
(vi) replace the Seller’s Representative if such Person resigns.
(b) The appointment of Sellers’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, its affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of Sellers’ Representative on behalf of Sellers in personall matters referred to herein. All notices delivered by Buyer or the Company (following the Closing) to Sellers’ Representative (whether pursuant hereto or otherwise) for the benefit of Sellers shall constitute notice to Sellers. Sellers’ Representative shall act for Sellers on all of the matters set forth in this Agreement in the manner Sellers’ Representative believes to be in the best interest of Sellers and consistent with its obligations under this Agreement, but Sellers’ Representative shall not be responsible to Sellers for any loss or damages it or they may suffer by reason of the performance by Sellers’ Representative of its duties under this Agreement, other than loss or damage arising from Sellers’ Representative’s willful violation of the law.
(c) Each Seller hereby agrees that: (i) in all matters in which action to indemnify and hold harmless Sellers’ Representative from any loss, damage or expense arising from the performance of its duties as Sellers’ Representative hereunder, including, without limitation, the cost of legal counsel retained by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on but excluding any and all action taken by Sellers’ Representative under this Agreement without any liability to, loss or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of damage arising from Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations ’s willful violation of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreementlaw.
(d) All payments actions, decisions and instructions of Sellers’ Representative taken, made or given pursuant to or by Sellers under the authority granted to Sellers’ Representative pursuant to this Agreement Section 1.3 shall be made in proportion to the Pro Rata Share of Sellersconclusive and binding upon each Seller, and each no Seller agrees shall have the right to and acknowledges its respective Pro Rata Share as object, dissent, protest or otherwise contest the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests)same.
(e) The provisions of this Section 1.3 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolution, granted by Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to binding upon the Sellers in accordance with their Pro Rata Shareexecutors, provided that the Sellers’ Representative shall be entitled to continue to hold heirs, legal representatives, successors and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment assigns of anticipated expenses associated with the discharge of his duties hereundereach such Seller.
Appears in 1 contract
Sources: Share Purchase and Sale Agreement (Hirsch International Corp)
Sellers’ Representative. (a) Each Seller The Sellers Representative is hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ irrevocably appointed by each of the Sellers as the sole representative representative, agent, proxy, and attorney-in-fact (coupled with an interest) for all the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller Sellers for all purposes under this Agreement, Agreement including for the purposes offull power and authority on the Sellers’ behalf: (i) acceptance of any payments hereunder or to consummate the transactions contemplated under any Ancillary this Agreement and delivery of wire instructions to Purchaser the other agreements, instruments, and documents contemplated hereby or executed in connection therewith; herewith, (ii) review 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 the Statement; doubt, claims for indemnification under Article IX), (iii) delivering to receive and disburse to, or caused to be received or disbursed to, any Seller any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval received on behalf of such Seller under this Agreement; and Agreement (xiiincluding, for the avoidance of doubt, any portion of the Purchase Price) taking 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 other actions and doing obligations or Liabilities of any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ 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 such the Sellers) in connection with the indemnification of the Buyer Indemnified Parties under Article IX), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of 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. As All decisions and actions by the representative of Sellers, Sellers’ Sellers Representative shall act as the agent for all Sellers be binding upon each Seller, and no Seller shall have authority the right to bind each Seller in accordance with object, dissent, protest or otherwise contest the same. The Sellers Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser 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 taken by the Sellers Representative or any Seller hereunder, and all no party hereunder shall have any cause of action against the Buyer for any action taken by Sellers’ Representative under this Agreement without any liability to, the Buyer in reliance upon the written instructions or obligation to inquire of, any decisions of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Sellers Representative, . Except as described set forth in this AgreementSection 10.15(b), shall continue nothing in full force and effect until all rights and obligations of Sellers under this Agreement Section 10.15 shall have terminatedany effect on any rights, expired obligations or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have Liabilities of the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS Buyer or any other Contract related to the Equity Interests)Buyer Indemnified Party.
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sources: Purchase Agreement (SciPlay Corp)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under By approving this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingtransactions contemplated hereby, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such each Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, irrevocably authorized and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints appointed Sellers’ Representative as such Seller’s true representative and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding Seller with respect to this Agreement and to take any dispute and all actions and make any decisions required or disagreement among permitted to be 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 Purchaser 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 documents necessary or desirable to carry out the intent of this 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 by Sellers’ Representative, as being fully binding upon such Seller. 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 Buyer relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such Person. No Seller shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Sellers, or by operation of Law.
(b) The Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Sellers according to each Seller’s Pro Rata Share (the “Majority Holders”); provided, 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 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 prior Sellers’ Representative as described in Section 11.01(a) above.
(c) The Sellers’ Representative shall not be liable to 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 act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any and all action taken by losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Sellers’ Representative under this Agreement without (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 liability toportion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority bad faith of Sellers’ Representative, Sellers’ Representative shall reimburse the Sellers 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 the Sellers, severally and not jointly (in accordance with their Pro Rata Shares), as described in soon as practicable after the date on which the final obligation of Sellers’ Representative under this Agreement, shall continue in full force and effect until all rights and obligations of 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 shall have terminatedin accordance to at such time as such amounts would otherwise be distributable to the Sellers; provided, expired or been fully performed; and (iii) if that while the Sellers’ Representative resigns 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 is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have incurred. In no event will the right to appoint a Seller to act as Sellers’ RepresentativeRepresentative 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 serve as described in 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) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative Buyer shall be entitled to retain rely (without investigation) on and not distribute shall have no liability to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held any Seller or any other Person for, any action taken by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used as being taken by the Sellers’ Representative by the second (2nd) anniversary for itself and on behalf of each of the Closing Date 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 distributed to the Sellers adequate, and such Seller shall not assert any defense or claim that service in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and such manner was not distribute adequate or sufficient in any funds which he, court in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderany jurisdiction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Wrap Technologies, Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ At the Closing, Gryphon Partners III, L.P. shall be constituted and appointed as the sole representative (Sellers’ Representative. For purposes of this Agreement, the term “Sellers’ Representative”” shall mean the representative, true and lawful agent, proxy and attorney in fact of the Company Stockholders for all purposes of this Agreement and the Escrow Agreement, with full power and authority on such Company Stockholder’s behalf (i) to consummate the transactions contemplated herein, (ii) to pay such Company Stockholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to such Company Stockholder and each other Company Stockholder and to holdback from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Stock and execution of such Seller further instruments as Purchaser shall reasonably request, (v) to act as the agent execute and deliver on behalf of such Seller for Company Stockholder all purposes documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of such Company Stockholder in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including for without limitation, disputes regarding Estimated Working Capital and any adjustment pursuant to Section 2.10, (viii) to waive any condition to the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review obligation of the Statement; Company Stockholders to consummate the transactions contemplated herein, (iiiix) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied give and supervising the Closing, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting receive notices on behalf of such Seller in accordance with Section 9,04 the Company Stockholders and (Notices); (viiix) taking to do each and every act and exercise any and all actions that may be necessary rights which such Company Stockholder is, or desirablethe Company Stockholders collectively are, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect permitted or required to the Companies do or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller exercise under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated . The Company Stockholders, by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As approving the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice principal terms of the appointment of a successor upon five (5) Business Days’ prior written notice Merger and/or accepting the consideration payable to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agentthem hereunder, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting irrevocably grant unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability desirable to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent and on behalf of such Seller for all purposes under By approving this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of the Statement; (iii) delivering any funds hereunder or under any Ancillary Agreement; (iv) determining whether the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closingtransactions contemplated hereby, including waiving any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, Party hereby irrevocably authorizes and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such SellerSeller Party’s true representative and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such SellerSeller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the Ancillary Documents, notwithstanding any dispute or disagreement among including, but not limited to, the Sellersexercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and Purchaser comply with orders or otherwise handle any other matters described in Section 2.04;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any 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, and on any other action taken or purported to be taken on behalf of any Seller Party by Sellers’ Representative, as being fully binding upon such Seller Party. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Seller Parties. Any decision or action by Sellers’ Representative hereunder, including any agreement between Sellers’ Representative and Buyer or Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon each such Seller Party. No Seller Party shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 1.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller Party or by operation of Law.
(c) Sellers’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Seller Parties; provided, however, in no event shall Sellers’ Representative resign or be removed without the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon the resignation or removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative shall be appointed by the vote or written consent of a majority of the Seller Parties. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to Buyer and Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received; provided, that until such notice is received, Buyer and Parent shall be entitled to rely on the decisions and actions of the prior Sellers’ Representative.
(d) Sellers’ Representative shall not be liable to the Seller Parties for actions taken pursuant to this Agreement or any Ancillary Document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Sellers’ Representative shall be conclusive evidence of good faith). The Seller Parties shall severally and not jointly, indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any and all action taken by losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Sellers’ Representative under this Agreement without any liability toAgreement, in each case as such losses are suffered or obligation to inquire ofincurred; provided, any of that in the Sellers, notwithstanding any knowledge on the part of Purchaser of event it is finally adjudicated that any such dispute loss or disagreement; (ii) any portion thereof was primarily caused by the power and authority gross negligence, fraud, intentional misconduct or bad faith of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to reimburse Seller Parties the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use amount of such funds. Any portion of indemnified losses attributable to such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Sharegross negligence, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which hefraud, in his sole and absolute discretion, deems prudent intentional misconduct or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderbad faith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Sellers’ Representative. (a) Each Seller By execution and delivery of this Agreement by each of the Sellers and Principals, each of the Sellers and Principals hereby appoints ▇▇▇▇ irrevocably make, constitute and appoint the Sellers’ Representative as his or her true and lawful agent, to act in his or her name, place and ▇▇▇▇▇▇▇ , as such Seller’s or Principal’s attorney-in-fact to: (i) execute and deliver all documents necessary or desirable to carry out the sole representative intent of this Agreement and the other Transaction Documents (including in the “name of, or on behalf of, such Seller or Principal); (ii) make all elections or decisions entered into in connection with this Agreement and the other Transaction Documents; (iii) execute and deliver such instruments of transfer or other documentation deemed necessary or desirable by the Sellers’ Representative”Representative to give effect to the transfer of the Shares; (iv) act on such Seller’s or Principal’s behalf in connection with all obligations and agreements of such Seller to act as the agent Sellers and Principals under any of the Transaction Documents executed and delivered by any of the Sellers or Principals; (v) amend, waive or otherwise change the terms or conditions of this Agreement or any other Transaction Document on behalf of such Seller or Principal or to enter into any other documents the Sellers’ Representative determines are reasonably necessary or desirable to give effect to this Agreement and the Transaction Documents; (vi) defend, settle, negotiate and make payments, if applicable, to the Buyer Indemnified Parties on behalf of such Seller or Principal in connection with any claim for all purposes indemnification made by any Buyer Indemnified Party pursuant to Article XI or XII and to initiate and prosecute any claim for indemnification made by or on behalf of such Seller or Principal pursuant to Article XI; (vii) receive any amounts payable to the Sellers or Principals under this AgreementAgreement or the other Transaction Documents; (viii) give and receive on behalf of the Sellers or Principals any and all notices from or to any Seller or Sellers, including for or Principal or Principals, under this Agreement or the purposes of: other Transaction Documents; (iix) acceptance execute, deliver and file all such further documents and instruments relating to this Agreement or the Transaction Documents on behalf of any payments hereunder the Sellers or under any Ancillary Agreement Principals, and delivery of wire instructions to Purchaser do all acts and things as may be reasonably necessary or desirable in connection therewith; and (iix) review otherwise exercise all rights of such Seller or Principal and otherwise act on behalf of such Seller or Principal under this Agreement and the Transaction Documents and in connection with any of the Statement; (iii) delivering transactions contemplated by this Agreement and the Transaction Documents, in each case as if such Seller or Principal had personally done such act, and the Sellers’ Representative hereby accepts such appointment. Unless otherwise agreed by the Sellers, any funds hereunder or under any Ancillary Agreement; (iv) determining whether proceeds received by the conditions Sellers’ Representative from Buyer on behalf of the Sellers shall be distributed to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if Sellers as promptly as practicable by the Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking any action that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection accordance with the termination hereof in accordance with Article VII (Termination, Amendment terms and Waiver); (vi) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf provisions of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements Agreement and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by such Seller or by Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to PurchaserTransaction Documents.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the The power and authority of the Sellers’ Representative, as described in this Agreement, shall continue in full force and effect be effective until all rights and obligations of the Sellers and Principals under this Agreement shall and the Transaction Documents have terminated, expired or been fully performed; . For greater certainty, and (iiiwithout limitation, this Section 13.16(b) if shall survive the Closing. Such appointment and power of attorney by each Seller and Principal, being coupled with an interest, shall be irrevocable and shall not be revoked by the insolvency or bankruptcy of such Seller or Principal and each Seller or Principal hereby ratifies and confirms and agrees to ratify and confirm all that the Sellers’ Representative resigns may lawfully do or cause to be done by virtue of such appointment and power.
(c) The power of attorney granted hereby is removed not intended to be a continuing power of attorney within the meaning of and governed by the Substitute Decisions Act (Ontario), or otherwise ceases to function any similar power of attorney under equivalent legislation in its capacity as any of the provinces or territories of Canada (a “CPOA”). The execution of this Agreement by the Sellers and Principals shall not terminate any such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint CPOA granted by a Seller or Principal previously and shall not be terminated by the execution by such Seller or Principal in the future of a CPOA, and each Seller and Principal hereby agrees not to act as Sellers’ Representative, to serve as described take any action in this Agreementthe future which results in the termination of the power of attorney granted hereby.
(d) All payments to or by Sellers under this Agreement The Sellers’ Representative shall be made in proportion entitled to the Pro Rata Share of Sellersrely, and each Seller agrees shall be fully protected in relying, upon any statements furnished to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective rightit by any Seller, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in Principal, Buyer, any organizational document of All Risks or ICS third party or any other Contract related evidence deemed by the Sellers’ Representative to the Equity Interests).
(e) The Sellers agree that be reliable, and the Sellers’ Representative shall be entitled to retain act on the advice of counsel, accountants, investment advisors and not distribute other professional advisors selected by it. The Sellers’ Representative shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless he shall have received such advice or concurrence of such Sellers or Principals as he deems appropriate or he shall have been expressly jointly and severally indemnified to his satisfaction by the Sellers at and Principals appointing him against any and all Loss and other liabilities and expenses that the Closing One Million Dollars Sellers’ Representative may incur by reason of taking or continuing to take any such action.
($1,000,000e) of The Sellers’ Representative shall be entitled to retain counsel or other professional advisors acceptable to him and to incur such costs and expenses as the Purchase Price to establish a reserve Sellers’ Representative, acting reasonably, deems to be held necessary or appropriate in connection with his performance of his obligations under this Agreement and the other Transaction Documents, and all such fees and expenses (including reasonable legal fees and expenses) incurred by the Sellers’ Representative shall be jointly and used for the non-exclusive purposes of funding any expenses of severally borne by each Seller and Principal (in accordance with each Sellers’ Representative arising in connection with the administration of his duties pursuant to this AgreementProportionate Share). The Sellers’ Representative shall have the sole right to deduct any reimbursement amounts payable to the Sellers’ Representative pursuant to this Section 13.16 from any reserve account established and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used maintained by the Sellers’ Representative in connection with the transactions contemplated hereby without any prior or further approval from the Sellers or Principals.
(f) The Sellers and Principals hereby agree to jointly and severally indemnify the Sellers’ Representative (in his capacity as such) against, and to hold the Sellers’ Representative (in his capacity as such) harmless from, any and all Loss and other liabilities and expenses of whatever kind which may at any time be imposed upon, incurred by or asserted against the Sellers’ Representative in such capacity in any way relating to or arising out of his action or failures to take action pursuant to this Agreement or any other Transaction Document.
(g) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be the initial Sellers’ Representative and shall serve as the Sellers’ Representative until his resignation or until replaced by the second (2nd) anniversary Sellers as provided herein. Upon the resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Sellers representing a majority of the Closing Date aggregate Proportionate Shares of all Sellers shall select a new Sellers’ Representative. At any time, the Sellers representing a majority of the aggregate Proportionate Share of all Sellers shall be distributed entitled to replace and select a new Sellers’ Representative. Each time a new Sellers’ Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the effectiveness of such appointment, shall accept such position in writing, and notice of such appointment shall be provided to Buyer. The new Sellers’ Representative appointed by the Sellers in accordance with their Pro Rata Sharethis Section shall immediately thereafter be and become the replacement Sellers’ Representative and following receipt of such notice Buyer shall thereafter send any notices or communications which are required to be provided herein to the new Sellers’ Representative.
(h) The provisions of this Section 13.16 shall in no way impose any obligations on Buyer. In particular, provided notwithstanding any notice received by Buyer to the contrary, and absent bad faith, gross negligence or willful misconduct by Buyer, Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no liability to the Sellers or Principals with respect to, actions, decisions and determinations of the Sellers’ Representative; and (ii) shall be entitled to assume that all actions, notices, decisions and determinations of the Sellers’ Representative are fully authorized by all of the Sellers and Principals.
(i) Notwithstanding anything to the contrary contained herein, subject to Section 13.16(a), any reference in this Agreement or any Transaction Document to actions, decisions or communications by any of the Sellers or Principals with respect to the period following the Closing shall, unless otherwise expressly provided herein, be made exclusively by the Sellers’ Representative. All references in this Agreement or any Transaction Document to decisions and actions to be taken by, or any notice, demand, delivery or other communication to be issued by, Buyer and directed to the Sellers or Principals or any one of them, as the case may be, shall be entitled deemed directed to continue the Sellers or Principals or any one of them, as the case may be, if such decisions, actions, notices, demands, deliveries or other communications are directed by Buyer to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderSellers’ Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Sellers’ Representative. (a) Each Seller hereby irrevocably appoints ▇▇▇▇ ▇▇▇▇▇▇▇ the Sellers Representative as the sole representative (the “Sellers’ Representative”) of such Seller to act as the agent Seller’s representative, agent, proxy and on behalf of such Seller attorney-in-fact for all purposes under this Agreement and the Escrow Agreement, including for the purposes offull power and authority to act on such Seller’s behalf: (i) acceptance of any payments hereunder to consummate the transactions contemplated by this Agreement (including with respect to the adjustments and distributions under Section 1.4) and the other agreements, instruments and documents contemplated hereby or under any Ancillary Agreement and delivery of wire instructions to Purchaser executed in connection therewithherewith (including the Escrow Agreement); (ii) review of to negotiate disputes arising under, or relating to, this Agreement (including with respect to the Statementadjustments 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) delivering to calculate any funds amounts to be received by the Sellers hereunder or under the Operating Agreement and to receive and disburse to such Seller any Ancillary 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) determining whether to withhold any amounts received on behalf of the conditions Sellers pursuant to closing this Agreement or any other agreements, instruments and documents contemplated hereby or executed in Article VI connection herewith (Conditions Precedentincluding the Escrow Agreement) have been satisfied or otherwise to satisfy any and supervising all obligations or liabilities incurred by the Closing, including waiving any such condition if Sellers’ Representative, Sellers or the Sellers Representative in his sole discretion, determines that such waiver is appropriatethe performance of its duties hereunder and thereunder; (v) taking to execute and deliver any action that may be necessary consent, amendment or desirablewaiver to this Agreement or any other agreement, as determined by Sellers’ Representative in his sole discretion, instrument or document contemplated hereby or executed in connection with herewith (including the termination hereof in accordance with Article VII Escrow Agreement) (Termination, Amendment and Waiverwithout the prior approval of any of the Sellers); and (vi) taking any and to take all other actions that may to be necessary taken by or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waivers); (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices); (viii) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, Sellers in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement or any Ancillary Agreement to be performed by other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Escrow Agreement). Each of the Sellers further agrees that such Seller 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 by Sellers’ Representative on behalf liquidation of such any Seller. As All decisions, actions, consents and instructions by the representative Sellers Representative shall require the consent of each Person constituting the Sellers Representative hereunder and shall be binding upon all of the Sellers, Sellers’ and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Sellers Representative shall act as the agent for all Sellers and shall have authority to bind each Seller in accordance with this Agreementno duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and Purchaser may rely on such appointment duties and authority until obligations shall be determined solely by the receipt express provisions of notice of this Agreement and the appointment of a successor upon five (5) Business Days’ prior written notice to PurchaserEscrow Agreement.
(b) Each Seller severally, for itself only and not jointly, agrees to indemnify and hold harmless the Sellers Representative and its Representatives against all expenses (other than Sellersincluding attorneys’ Representative) hereby appoints Sellers’ Representative as fees), judgments, fines and amounts incurred by such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, Persons in connection with any Action to which the TransactionsSellers Representative or such other Person is made a party by reason of the fact that it is or was acting as, granting unto said attorney-in-fact or at the direction of, the Sellers Representative pursuant to the terms of this Agreement and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done any other agreement, instrument or document contemplated hereby or executed in connection with herewith (including the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in personEscrow Agreement).
(c) Each Neither the Sellers Representative nor any of its Representatives shall incur any liability to any Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required virtue of the failure or permitted, Sellers’ Representative is authorized to act on behalf 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 Sellers Representative and its Representatives shall have no liability in respect of any Action brought against such Persons by any Seller, notwithstanding regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any dispute or disagreement among action in good faith.
(d) The Sellers Representative shall have the right to recover from, in its sole discretion, the Sellers Representative Escrow Fund and/or the Adjustment Escrow Fund prior to any distribution to the Sellers, the Sellers Representative’s (including its Representatives) out-of-pocket expenses incurred in the performance of its duties hereunder, including those resulting from the employment of financial advisors, attorneys, auditors and Purchaser other advisors and agents assisting in the assessment of arbitration, litigation and settlement of any disputes arising under this Agreement or other agreement, instrument or document contemplated hereby or executed in connection herewith (including the Escrow Agreement) and any fees of the Independent Accounting Firm pursuant to Section 1.4 (the “Charges”). In the event the Sellers Representative Escrow Fund and/or the Adjustment Escrow Fund are insufficient to satisfy the Charges, then each Seller will be obligated to pay his, her or its pro rata portion of such deficit (determined in accordance with Section 11.1(b) of the Operating Agreement based on the number and type of Company Units held immediately prior to the Closing, directly or indirectly, by such Seller as reasonably determined in good faith by the Sellers Representative). Following full reimbursement of all Charges, the Sellers Representative shall distribute to each Seller any remaining portion of the Sellers Representative Escrow Fund in accordance with Section 1.4.
(e) At any time prior to the distribution of the Sellers Representative Escrow Fund pursuant to Section 10.22(d) above, a majority-in-interest (determined in accordance with Section 11.1(b) of the Operating Agreement based on the number and type of Company Units held immediately prior to the Closing, directly or indirectly, by such Seller or Sellers) of the Sellers may, by written consent, appoint a new representative as the Sellers Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of the Sellers of a majority-in-interest of those Sellers must be delivered to the Buyer and each other Seller not less than ten (10) days 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. 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 any and all action taken by Sellers’ Representative under this Agreement behalf of the Sellers (without any liability to, or obligation to inquire of, any into the authority of the SellersSellers Representative or the genuineness or correctness of such document or other paper or any signature of the Sellers Representative), notwithstanding and the Buyer shall not be liable to any knowledge on Seller for any action taken or omitted to be taken by the part Buyer in such reliance or with respect to actions, decisions and determinations of Purchaser of the Sellers Representative. The Buyer shall not have any such dispute 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 disagreement; (ii) otherwise contest the power and authority of Sellers’ the Sellers Representative. Each of the Company, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, Blockers and each Seller agrees to and acknowledges its respective Pro Rata Share hereby waives any claim he, she or it may have or assert, including those that may arise in the future, against the Sellers Representative for any action or inaction taken or not taken by the Sellers Representative in such Person’s capacity as the sole mechanism for determining its respective rightSellers Representative, title and interest in and except to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks extent such action or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative inaction shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be have been held by the Sellers’ Representative a court of competent jurisdiction to constitute actual, intentional and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderknowing fraud.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mattress Firm Holding Corp.)
Sellers’ Representative. (a) Each By virtue of execution and delivery of this Agreement, effective as of the Closing, each Seller shall be deemed to have agreed, to, and hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇ does, irrevocably nominate, constitute and appoint Oxford Science Enterprises plc as the sole representative (the “Sellers’ Sellers Representative”) of such Seller , to act as the agent such Seller’s lawful and on behalf exclusive representative, agent, proxy, and attorney-in-fact (with full power of such Seller substitution) for all purposes under in connection with this AgreementAgreement or any related agreements, including for the purposes ofto: (i) acceptance to give and receive notices, communications and documents in respect of the negotiation, administration, performance or enforcement of this Agreement, any payments hereunder related agreements or under the transactions contemplated hereby or thereby or any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewithaction, claim or dispute related thereto (each, a “Relevant Matter”); (ii) review of the Statementto authorize or object to any claims or actions under this Agreement or any related agreement; (iii) delivering to agree to, negotiate, enter into settlements or compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any funds hereunder or under any Ancillary AgreementRelevant Matter; (iv) determining whether the conditions consent or agree to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving any such condition if amendment to this Agreement or any related agreement at any time on behalf of all Sellers’ Representative, in his sole discretion, determines that such waiver is appropriate; (v) taking grant any action that may be necessary extension or desirable, as determined by Sellers’ Representative in his sole discretion, waiver under or in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver)this Agreement or any related agreement; (vi) taking any receive funds, make payments of funds and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the amendment hereof give receipts for funds in accordance with Section 9,13 (Amendments and Waivers)this Agreement; (vii) accepting notices on behalf of such Seller in accordance with Section 9,04 (Notices)execute and deliver all agreements, certificates and documents required to be executed and delivered by the Sellers Representative pursuant to this Agreement or any related agreement; (viii) taking any engage special counsel, accountants and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, other advisors and incur such other expenses in connection with the payment any of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller under this Agreement; and (xii) taking any and all other actions and doing any and all other things provided in or transactions contemplated by this Agreement or any Ancillary related agreement; and (ix) and to take all other actions that are either (A) necessary or appropriate in the judgment of the Sellers Representative for the accomplishment of the foregoing or in connection with this Agreement or any related agreement, or (B) specifically mandated, permitted or contemplated by the terms of this Agreement or any related agreement, in each case of clauses (i) through (viii), without having to seek or obtain the consent of any Person under any circumstance. The powers, immunities and rights to indemnification granted to the Sellers Representative hereunder are coupled with an interest and shall be performed by such unconditional and irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor or by Sellers’ assignee thereto. The Sellers Representative on behalf of such Sellermay resign at any time. As the representative of Sellers, Sellers’ Representative shall act The Person serving as the agent for all Sellers and shall have authority Representative may be replaced from time to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until time by the receipt of notice written consent of the appointment Persons then holding a Pro Rata Portion greater than two-thirds (2/3) of a successor the aggregate of all Pro Rata Portions (the “Requisite Seller Threshold”). The Sellers Representative may resign at any time for any reason upon five thirty (530) Business Daysdays’ prior written notice to Purchaserthe Requisite Seller Threshold.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ The Sellers Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, will incur no liability to the Sellers in connection with the TransactionsSellers Representative’s services or any action taken or failed to be taken in connection therewith, granting unto said attorney-in-fact and agent full power and authority except to do the extent resulting from the Sellers Representative’s gross negligence or willful misconduct. The Sellers Representative shall not be liable to the Sellers for anything done, omitted or suffered based on the advice of counsel. The Sellers Representative may execute any of its powers and perform each any duties hereunder directly or through agents or counsel and every act may consult with counsel, accountants and thing requisite and necessary other skilled persons to be done selected and retained by it. The Sellers shall reimburse and 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 with, this Agreement and the sale 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 for the amount of such Sellerindemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. In no event will the Sellers Representative be required to advance the Sellers Representative’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act own funds on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers. 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, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability not apply to, or obligation to inquire of, any of the Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute indemnities provided to the Sellers at Representative hereunder. The foregoing indemnities will survive the Closing One Million Dollars ($1,000,000) Closing, the resignation or removal of the Purchase Price to establish a reserve to be held by Sellers Representative or the Sellers’ Representative and used for the non-exclusive purposes termination of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative For the avoidance of doubt, Buyer shall have no obligation to indemnify the sole Sellers Representative for any Representative Losses arising out of, or in connection with, this Agreement and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by Related Agreements, and in no event shall the Sellers’ Sellers Representative by the second (2nd) anniversary of the Closing Date shall be distributed liable to the Sellers in accordance with their Pro Rata Sharefor liabilities, provided that losses or expenses of any kind whatsoever, even if the Sellers’ Sellers Representative shall be entitled to continue to hold and not distribute any funds which hehas been advised of the likelihood of such liability, in his sole and absolute discretion, deems prudent loss or necessary for payment of anticipated expenses associated with the discharge of his duties hereunderexpense.
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Sellers’ Representative. 6.12.1 The Seller and the SPA Sellers (acollectively, the “APA Sellers” and each individually, an “APA Seller”) Each Seller hereby appoints ▇▇▇▇ ▇▇irrevocably appoint (the “Appointment”) ▇▇▇▇▇ as the sole representative Representative of the APA Sellers, as the APA Seller’s agent and attorney-in-fact for all purposes set forth in this Agreement (the “Sellers’ Representative”) of such Seller including the full power and authority to act as (i) perform the agent and on behalf of such Seller for all purposes transactions contemplated hereunder to be performed by the APA Sellers under this Agreement, including for the purposes of: (i) acceptance of any payments hereunder or under any Ancillary Agreement and delivery of wire instructions to Purchaser in connection therewith; (ii) review of disburse any funds received by the StatementSeller; (iii) delivering execute and deliver on behalf of the APA Sellers any funds hereunder amendment or waiver under any Ancillary this Agreement; (iv) determining whether execute and deliver on behalf of the conditions to closing in Article VI (Conditions Precedent) have been satisfied and supervising the Closing, including waiving APA Sellers any such condition if Sellers’ Representative, in his sole discretion, determines that such waiver is appropriateAncillary Agreements; (v) taking any action that may be necessary or desirable, as determined by give and receive notices on behalf of the APA Sellers’ Representative in his sole discretion, in connection with the termination hereof in accordance with Article VII (Termination, Amendment and Waiver); (vi) taking any make, dispute, and settle all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, claims under this Agreement (including in connection with the amendment hereof in accordance with Section 9,13 (Amendments and Waiversany matter that only relates to one specific APA Seller, but not all APA Sellers); (vii) accepting notices receive service of process and/or notice from a Buyer Indemnified Person on behalf of such Seller in accordance with Section 9,04 (Notices); (viiithe APA Seller(s) taking any and all actions that may be necessary or desirable, as determined by Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Companies or such Seller in accordance with Section 5,06 (Expenses); (ix) delivering or causing to be delivered to Purchaser at the Closing certificates representing the Equity Interests to be sold by such Seller hereunder; (x) executing and delivering, in Sellers’ Representative’s capacity as the representative of such Seller, any and all notices, documents or certificates to be executed by Sellers’ Representative, on behalf of such Seller, in connection with this Agreement, the Ancillary Agreements and the Transactions; (xi) granting any consent or approval on behalf of such Seller indemnification claims under this Agreement; and (xiiviii) taking interpret the terms of this Agreement and any other related agreement. The Appointment, being coupled with an interest, is irrevocable and will not be revoked by the insolvency, bankruptcy, death, incapacity, dissolution, liquidation or other termination of existence of any APA Seller. All decisions and acts by the Sellers’ Representative within his authority under this Section 6.12.1 shall be binding upon all of the APA Sellers, and no APA Sellers shall have the right to object, dissent, protest or otherwise contest the same. The Sellers’ Representative ▇▇▇▇▇▇ accepts the appointment as Sellers’ Representative pursuant to this Agreement effective on the date hereof, in accordance with the terms set forth in this Section 6.12.
1. The appointment of Sellers’ Representative shall be binding upon each APA Seller and his, her or its respective heirs, executors, successors and permitted assigns.
6.12.2 The Sellers’ Representative shall act on behalf of the APA Sellers with the same effect as if taken by the APA Sellers to institute, make or pursue claims, counterclaims or defenses, enter into, modify, amend, implement or waive any contract, compromise, settle or surrender any disputes or claims or make any other determination or take any other action or assert or compromise any claim in connection with all matters relating to this Agreement, the other Ancillary Agreements and any of the transactions contemplated hereby and thereby, including the receipt and delivery at Closing of certificates and other documents and 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, gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. Each APA Seller (other than the Seller) shall, jointly and severally with each other APA Seller (other than the Seller), indemnify and hold and save harmless the Sellers’ Representative from and against any Losses of any nature whatsoever (including reasonable legal fees) that the Sellers’ Representative may sustain or incur as a result of any action or omission taken by the Sellers’ Representative in relation to the Appointment and performance of such role, save for any such Losses attributable to the fraud or intentional misconduct of the Sellers’ Representative.
6.12.4 If the Sellers’ Representative becomes unable to perform the Sellers’ Representative’s responsibilities or resigns from such position, the Sellers’ Representative shall select another SPA Seller(s) or principal or beneficiary of a SPA Seller to fill such vacancy and such substituted representative shall: (i) be the Sellers’ Representative for all purposes of this Agreement; and (ii) exercise the rights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Sellers’ Representative under this Agreement.
6.12.5 The signature of the Sellers’ Representative shall be deemed to be the signature of all APA Sellers, and each APA Seller shall be bound by 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 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 the APA Sellers. Any action by Sellers’ Representative shall be conclusively deemed to be the action of the APA Sellers, and Buyer shall not have any liability or responsibility to any APA Seller for any action taken in reliance thereon. Buyer will not have any liability or obligation arising out of the acts or omissions of Sellers’ Representative or any disputes between or among the APA Sellers and Sellers’ Representative. Buyer may rely entirely on its dealings with, and notices to and from, Sellers’ Representative 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 other actions and doing Losses that they may suffer or sustain as a result of any and all other things provided in or contemplated claim by this Agreement or any Ancillary Agreement to be performed Person that an action taken by such Seller or by the Sellers’ Representative on behalf of such Seller. As the representative of Sellers, Sellers’ Representative shall act as the agent for all APA Sellers and shall have authority to bind each Seller in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon five (5) Business Days’ prior written notice to Purchaser.
(b) Each Seller (other than Sellers’ Representative) hereby appoints Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the Transactions, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Equity Interests and the other Transactions as fully to all intents and purposes as such Seller might or could do in person.
(c) Each Seller hereby agrees that: (i) in all matters in which action by Sellers’ Representative is required or permitted, Sellers’ Representative is authorized to act on behalf of such Seller, notwithstanding any dispute or disagreement among the Sellers, and Purchaser shall be entitled to rely on any and all action taken by Sellers’ Representative under this Agreement without any liability tonot binding on, or obligation to inquire ofenforceable against, any of the APA Sellers, notwithstanding any knowledge on the part of Purchaser of any such dispute or disagreement; (ii) the power and authority of Sellers’ Representative, as described in this Agreement, shall continue in full force and effect until all rights and obligations of Sellers under this Agreement shall have terminated, expired or been fully performed; and (iii) if Sellers’ Representative resigns or is removed or otherwise ceases to function in its capacity as such for any reason whatsoever, within thirty (30) days, Sellers shall have the right to appoint a Seller to act as Sellers’ Representative, to serve as described in this Agreement.
(d) All payments to or by Sellers under this Agreement shall be made in proportion to the Pro Rata Share of Sellers, and each Seller agrees to and acknowledges its respective Pro Rata Share as the sole mechanism for determining its respective right, title and interest in and to the payment to which it is entitled in respect of its Equity Interests (notwithstanding anything in any organizational document of All Risks or ICS or any other Contract related to the Equity Interests).
(e) The Sellers agree that the Sellers’ Representative shall be entitled to retain and not distribute to the Sellers at the Closing One Million Dollars ($1,000,000) of the Purchase Price to establish a reserve to be held by the Sellers’ Representative and used for the non-exclusive purposes of funding any expenses of Sellers’ Representative arising in connection with the administration of his duties pursuant to this Agreement. The Sellers’ Representative shall have the sole and absolute discretion to determine the use of such funds. Any portion of such funds that have not been used by the Sellers’ Representative by the second (2nd) anniversary of the Closing Date shall be distributed to the Sellers in accordance with their Pro Rata Share, provided that the Sellers’ Representative shall be entitled to continue to hold and not distribute any funds which he, in his sole and absolute discretion, deems prudent or necessary for payment of anticipated expenses associated with the discharge of his duties hereunder.
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