Sellers’ Representative. 16.1 Each of the Sellers who are a party to this Agreement (excluding the Fund Sellers) hereby irrevocably appoints the Sellers’ Representative as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of: 16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19; 16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration; 16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2; 16.1.4 agreeing with the Buyer on the final Completion Statement; 16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents; 16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule; 16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents; 16.1.8 taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the transaction contemplated by this Agreement and the Transaction Documents; and 16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellers. 16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
Appears in 2 contracts
Sources: Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.), Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.)
Sellers’ Representative. 16.1 25.1 Each Seller hereby irrevocably constitutes Shilen ▇▇▇▇▇▇▇ as Sellers’ Representative for the purpose of:
25.1.1 performing and completing the transactions and delivering all documents contemplated by this Agreement and each Transaction Document;
25.1.2 receiving all notices and communications pursuant to this Agreement and each Transaction Document and service of process in any legal action or other proceeding arising out of or related to this Agreement and each Transaction Document or any of the transactions thereunder;
25.1.3 instructing the Escrow Agent to release funds from the SPA Escrow Account;
25.1.4 settling or agreeing any dispute or claim arising out of or related to this Agreement and each Transaction Document and giving any waivers, consents or other approvals required to be given by the Sellers (in whatever capacity, whether as Sellers or otherwise) pursuant to this Agreement and each Transaction Document; and
25.1.5 taking all actions and exercising all rights of the Sellers pursuant to this Agreement and each Transaction Document.
25.2 Each Seller:
25.2.1 irrevocably agrees that any Notice to be given to it is deemed to have been properly given if it is given to the Sellers’ Representative in accordance with the provisions of clause 26 (whether or not such notice is forwarded to or received by such Seller); and
25.2.2 irrevocably agrees that failure by the Sellers’ Representative to notify it of the process will not invalidate the legal action or proceedings concerned.
25.3 The Sellers may from time to time appoint such other person to be the Sellers’ Representative provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by BPL.
25.4 In connection with the performance of its obligations under any Transaction Document, the Sellers’ Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Sellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as such Sellers’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services under any Transaction Document.
25.5 Each of the Sellers who are a party irrevocably:
25.5.1 undertakes to this Agreement (excluding the Fund Sellers) hereby irrevocably appoints Buyer that the Sellers’ Representative as has and shall retain the representative of the Sellers authority to act on their behalf for all purposes under or bind it in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers relation to each matter referred to in accordance with Clause 19clause 25.1 (“Relevant Matter”);
16.1.2 delivering payment instructions to 25.5.2 agrees that the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable shall be entitled to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer rely on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims Notice or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined communication in writing provided by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect relation to the transaction contemplated by this Agreement and the Transaction Documentsany Relevant Matter as binding on it; and
16.1.9 generally taking 25.5.3 agrees that any and all other actions and doing any and all other things provided Notice or communication in or contemplated writing by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of to the Sellers.
16.2 Each Seller hereby irrevocably Buyer in relation to any Relevant Matter shall be deemed (unless the context requires otherwise) to be provided by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do agent for all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Hain Celestial Group Inc)
Sellers’ Representative. 16.1 Each Sellers hereby 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 Sellers following the Closing: (i) to give and receive notices and communications; (ii) to take any and all actions relating to claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder; (iii) to authorize delivery to Buyer of a portion of the Escrow Fund in satisfaction of claims by the Indemnitees; (iv) to object to such deliveries; (v) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (vi) to take all actions on behalf of Sellers who are in connection with the working capital adjustment contemplated in Section 1.4; (vii) to take all other actions contemplated for the Sellers’ Representative in this Agreement and in the Escrow Agreement; (viii) 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 (including the Escrow Agreement); (ix) to make all elections or decisions contemplated by this Agreement and any other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (x) to amend, modify or waive provisions of this Agreement (subject to Section 6.2 and Section 6.3) or any of the other related agreements to which the Sellers’ Representative is a party party; (xi) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Sellers’ Representative in complying with the Sellers’ Representative’s duties and obligations; and (xii) to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all such matters relating to this Agreement (excluding including Article VI) 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 Fund Sellers) hereby irrevocably appoints ’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as being fully binding upon such holder. Notices or communications to or from the Sellers’ Representative as the representative of the Sellers shall constitute notice to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to from each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims . Any decision or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined action by the Sellers’ Representative in its sole discretionhereunder, in connection with the payment of the costs and expenses incurred with respect to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking including any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or agreement between the Sellers’ Representative on behalf and Buyer relating to the defense, payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such holder. No Seller shall have the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name right to object to, dissent from, protest or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in contest the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1same.
Appears in 1 contract
Sellers’ Representative. 16.1 (a) Each Seller and GAA approves the designation of and designates Gold as the representative of Sellers who are a party and GAA and as the attorney-in-fact and agent for and on behalf of each Seller and GAA (the “Sellers’ Representative”) with respect to claims under this Article 7, disputes under Section 9.11, and all other matters under this Agreement (excluding where reference is made to the Fund Sellers) hereby irrevocably appoints ’ Representative, and the taking by the Sellers’ Representative as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may and the making of any decisions required or permitted to be taken by the Sellers’ Representative under this Agreement, including the exercise of the power to:
(i) authorize, agree to, or initiate any proceeding objecting to any adjustments to the Purchase Price pursuant to Section 2.05(e) of this Agreement;
(ii) agree to, negotiate, enter into settlements and compromises of, initiate legal proceedings with respect to and comply with orders of courts and awards of arbitrators with respect to, any claims arising under this Article 7;
(iii) arbitrate, resolve, settle or compromise any claim made under this Article 7; and
(iv) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the foregoing.
(b) In addition to the matters set forth in Section 7.11(a), the Sellers’ Representative will have authority and power to act on behalf of each Seller and GAA with respect to the disposition, settlement or desirableother handling of:
(i) all claims under this Article 7; PR01/ 1485553.8
(ii) all rights and obligations arising under this Article 7;
(iii) all disputes under Section 9.11 of this Agreement;
(iv) any disputes, as determined claims or other proceedings relating to the adjustments described in Section 2.05 of this Agreement;
(v) any election to waive any condition or provision of this Agreement; and
(vi) the execution and delivery of any certificates, certifications, representation letters, or other documents required to be delivered by Sellers pursuant to the terms of this Agreement.
(c) Sellers and GAA will be bound by all actions taken and documents executed and delivered by the Sellers’ Representative in its sole discretionhis capacity as Sellers’ Representative hereunder, including actions taken in connection with the payment of the costs Section 2.05 and expenses incurred with respect this Article 7, and Buyer will be entitled to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking rely on any and all other actions and doing any and all other things provided in action or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion decision of the Sellers’ Representative.
(d) In performing the functions specified in this Agreement, the Sellers’ Representative will not be required liable to give effect any Seller, GAA or Buyer in the absence of willful misconduct on the part of the Sellers’ Representative. Sellers will jointly and severally indemnify the Sellers’ Representative and hold him harmless against any Loss incurred without willful misconduct on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(e) The Sellers’ Representative will not be entitled to receive any compensation from Buyer, GAA, Sellers or the Company in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Sellers’ Representative in connection with actions taken by the Sellers’ Representative under the terms of this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid by Sellers (on a pro rata basis in accordance with their respective Ownership Interests) to the matters described Sellers’ Representative.
(n) If the individual serving as the Sellers’ Representative dies, becomes unable to perform the responsibilities hereunder or resigns, a substitute representative will be appointed by Sellers representing a majority of the Closing Cash Payment to be received by Sellers as set forth in Clause 16.1.Section 3.03
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (GAIN Capital Holdings, Inc.)
Sellers’ Representative. 16.1 Each 22.1 The initial Sellers’ Representative will be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Sellers may change the Sellers’ Representative at any time by serving written notice on the Buyer, such notice to be signed by the Sellers holding a majority of the Sellers who are a party Shares sold pursuant to this Agreement (excluding the Fund Sellers) hereby agreement.
22.2 Each Seller irrevocably appoints the Sellers’ Representative as his agent to negotiate and settle any dispute or other matter with the representative Buyer arising in connection with this agreement.
22.3 The Sellers’ Representative may on behalf of the Sellers to act on their behalf for all purposes any Seller give or receive any notice or consent or make any agreement or take any action, which that Seller may give, receive, make or take under or in connection with this Agreement and agreement.
22.4 Each Seller irrevocably agrees to service (or, in the Transaction Documentscase of a notice, including without limitation for the purposes of:
16.1.1 accepting notices on behalf delivery) of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer any action, suit or other proceedings in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable this agreement by notice to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretion, in connection accordance with the payment provisions of clause 23.
22.5 Each of the costs and expenses incurred with respect to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or irrevocably agrees that it shall on an independent basis indemnify the Sellers’ Representative on behalf pro-rata (in accordance with his proportion of the Sellers.
16.2 Each Seller hereby irrevocably (by way Consideration Shares received on sale of security for the performance his Shares) in respect of its obligations under this Agreement) appoints any costs and expenses which the Sellers’ Representative may reasonably and properly incur pursuant to this agreement and all other claims, damages, costs, expenses, liabilities, proceedings, losses, penalties and interest he may suffer in his capacity as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required Sellers’ Representative hereunder, other than by law or as may, in the reasonable opinion reason of the Sellers’ Representative, ’s own wilful default or fraud.
23.1 Any notices or other communication given under this agreement must be required to give effect in writing and served:
23.1.1 by hand delivery to the matters described recipient;
23.1.2 by first class recorded delivery post addressed to the relevant party’s address as specified in Clause 16.1this agreement or such other address as a party may have last notified to the others; or
23.1.3 by email to the following email addresses or such other email address as a party may have last notified to the others together with a confirmatory copy sent by first class post: Sellers’ Representative Buyer ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ with a copy to Buyer’s Solicitors marked for the attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
23.2 Any notice given pursuant to clause 23.1 is deemed to have been served:
23.2.1 if delivered by hand, at the time of delivery;
23.2.2 if sent by post, within 48 hours of posting, exclusive of Sundays; and
23.2.3 if transmitted by email, at the time of despatch during business hours at its destination or, if not within business hours, at the next period of business hours, but subject to the sender proving that the notice was sent to the email address of the recipient using return receipt, using the highest importance level option for delivery and marking the subject header of the email “Important legal notice”.
23.3 For the purpose of clause 23.2, business hours means between 9.00 a.m. and 5.30 p.m.
23.4 A notice given to the Sellers’ Representative first named in clause 23.1.3 is deemed given to all the other Sellers.
Appears in 1 contract
Sources: Share Sale Agreement
Sellers’ Representative. 16.1 Each of the Sellers who are a party to this Agreement (excluding the Fund Sellers) hereby irrevocably appoints the Sellers’ Representative as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
16.3 The Buyer and each Seller acknowledge that in exercising the powers and authorities conferred by this Clause 16 or the Transaction Documents upon the Sellers’ Representative, the Sellers’ Representative shall not be acting, or be construed as acting, as the agent or trustee on behalf of any Seller.
16.4 Each Seller agrees that the Sellers’ Representative shall have no liability whatsoever to any Seller in relation to the exercise of those powers and authorities, and each Seller severally agrees to pay, indemnify and hold harmless the Sellers’ Representative pro rata to their respective Consideration in respect of any actions taken pursuant to this Clause 16, save in the case of fraud or bad faith on the part of the Sellers’ Representative. The Sellers’ Representative shall not be liable to any Seller for any actions or omissions taken or occurring pursuant to legal or other professional advice.
16.5 The Buyer shall be entitled to rely on the exercise of the powers and authorities conferred on the Sellers’ Representative as if the relevant Seller is exercising such powers and authorities.
16.6 The provisions of this Clause 16 are intended to be for the express benefit of, and will be enforceable by, the Sellers’ Representative, in each case as a third party beneficiary in accordance with this Clause 16, and the Buyer.
16.7 The provisions of this Clause 16 shall apply mutatis mutandis in respect of any persons so appointed. If the Sellers’ Representative appointed in accordance with this Clause 16 determines that he is, or he is otherwise, unable to act as the Sellers’ Representative for any reason (such as death, incapacity or any other circumstances in which it would be unreasonable to expect him to continue) or is deemed unable to act as the Sellers’ Representative by a majority of the Sellers (excluding the Fund Sellers), a majority of the Sellers (excluding the Fund Sellers) may elect, pro rata to the number of Shares held by them, to substitute as the Sellers’ Representative another Seller who is willing to act as the Sellers’ Representative in accordance with this Clause 16. Each Seller agrees that the Buyer shall, acting in good faith, be entitled to rely on the instruction of the Sellers’ Representative.
Appears in 1 contract
Sources: Third Deed of Amendment to Share Purchase Agreement (Metsera, Inc.)
Sellers’ Representative. 16.1 Each of the Sellers who are a party 15.1 Subject to this Agreement (excluding the Fund Sellers) hereby clause 15.5, each Seller irrevocably appoints the Sellers’ Representative as its agent:
15.1.1 to negotiate, compromise, agree and settle any Acquisition Dispute with the representative of the Sellers Purchaser on its behalf; and
15.1.2 to act on their its behalf for all purposes in relation to any matter which this agreement expressly provides to be agreed or done by the Sellers’ Representative.
15.2 Without prejudice to clause 15.1, each Seller irrevocably agrees that any Notice, consent or agreement, election, demand or other action to be given, made or taken by such Seller (whether individually or with others) under or in connection with this Agreement and agreement may be given, made or taken on its behalf by the Transaction Documents, including without limitation for the purposes ofSellers’ Representative.
15.3 Each Seller irrevocably:
16.1.1 accepting notices on behalf of 15.3.1 (subject to clause 15.5) undertakes to the Sellers Purchaser that the Sellers’ Representative has and shall retain the authority to bind it in accordance with Clause 19relation to the matters referred to in clauses 15.1 and 15.2 (“Relevant Matters”);
16.1.2 delivering payment instructions 15.3.2 agrees that the Purchaser shall be entitled to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer rely on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims Notice or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined communication in writing provided by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect relation to the transaction contemplated by this Agreement and the Transaction Documentsany Relevant Matter as binding on it; and
16.1.9 generally taking 15.3.3 agrees that any and all other actions and doing any and all other things provided Notice or communication in or contemplated writing by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf to the Purchaser in relation to any Relevant Matter shall be deemed (unless the context requires otherwise) to be provided by the Sellers’ Representative as agent for all of the Sellers.
16.2 15.4 Each Seller hereby Seller:
15.4.1 (subject to clause 15.5) irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority agent to accept service on its behalf of (a) Notices and (b) process in any legal action or proceedings before the Seller’s name or otherwise courts of England and Wales relating to do all acts and any Acquisition Dispute;
15.4.2 irrevocably agrees that any Notice to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of be given to it is deemed to have been properly given if it is given to the Sellers’ Representative in accordance with the provisions of clause 27 (whether or not such Notice is forwarded to or received by such Seller); and
15.4.3 irrevocably agrees that failure by the Sellers’ Representative to notify it of the process will not invalidate the legal action or proceedings concerned.
15.5 If, for any reason, the Sellers’ Representative ceases to be able to act for the purposes of this clause 15 or no longer has a postal address in the United Kingdom, the Sellers shall immediately:
15.5.1 (subject to this clause 15.5) irrevocably appoint a substitute Sellers’ Representative with a postal address in the United Kingdom; and
15.5.2 notify the Purchaser of the name, relevant contact (where appropriate) and postal and email addresses of the substitute Sellers’ Representative. Such appointment and notice shall be effective on the fifth Business Day after the date on which the notice given pursuant to clause 15.5.2 is deemed to have been served or delivered in accordance with clause 27.
15.6 If, on any occasion, there is no Sellers’ Representative:
15.6.1 the Purchaser shall be required entitled to give effect deal with the Sellers instead;
15.6.2 (except in clause 1.1 and in this clause 15) references in this agreement to the matters described Sellers’ Representative shall be construed accordingly; and
15.6.3 for the purposes of clause 27.3, the relevant contact (where appropriate) and postal and email addresses of the Sellers shall be as set out in Clause 16.1column (2) of appendix 1.
Appears in 1 contract
Sources: Share Purchase Agreement (Silicon Laboratories Inc)
Sellers’ Representative. 16.1 Each of the Sellers who are a party 14.1 Subject to this Agreement (excluding the Fund Sellers) hereby clause 14.5, each Seller irrevocably appoints the Sellers’ Representative as its agent:
14.1.1 to negotiate and agree and/or deal with the representative determination of the Sellers Consideration in accordance with clause 3 and schedule 7;
14.1.2 to take all actions and exercise all rights in relation to the Escrow Sum and the Escrow Account;
14.1.3 to negotiate, compromise, agree and settle any Acquisition Dispute with the Purchaser on its behalf; and
14.1.4 to act on their its behalf for all purposes in relation to any matter which this agreement expressly provides to be agreed or done by the Sellers’ Representative.
14.2 Without prejudice to clause 14.1, each Seller irrevocably agrees that any Notice, consent or agreement, election, demand or other action to be given, made or taken by such Seller (whether individually or with others) under or in connection with this Agreement and agreement may be given, made or taken on its behalf by the Transaction Documents, including without limitation for the purposes ofSellers’ Representative.
14.3 Each Seller irrevocably:
16.1.1 accepting notices on behalf of 14.3.1 (subject to clause 14.5) undertakes to the Sellers Purchaser that the Sellers’ Representative has and shall retain the authority to bind it in accordance with Clause 19relation to the matters referred to in clauses 14.1 and 14.2 (“Relevant Matters”);
16.1.2 delivering payment instructions 14.3.2 agrees that the Purchaser shall be entitled to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer rely on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims Notice or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined communication in writing provided by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect relation to the transaction contemplated by this Agreement and the Transaction Documentsany Relevant Matter as binding on it; and
16.1.9 generally taking 14.3.3 agrees that any and all other actions and doing any and all other things provided Notice or communication in or contemplated writing by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf to the Purchaser in relation to any Relevant Matter shall be deemed (unless the context requires otherwise) to be provided by the Sellers’ Representative as agent for all of the Sellers.
16.2 14.4 Each Seller hereby Seller:
14.4.1 (subject to clause 14.5) irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority agent to accept service on its behalf of (a) Notices and (b) process in any legal action or proceedings before the Seller’s name courts of England and Wales or otherwise the jurisdiction in which the Purchaser is incorporated relating to do all acts and any Acquisition Dispute;
14.4.2 irrevocably agrees that any Notice to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of be given to it is deemed to have been properly given if it is given to the Sellers’ Representative in accordance with the provisions of clause 28 (whether or not such Notice is forwarded to or received by such Seller); and
14.4.3 irrevocably agrees that failure by the Sellers’ Representative to notify it of the process will not invalidate the legal action or proceedings concerned.
14.5 If, for any reason, the Sellers’ Representative ceases to be able to act for the purposes of this clause 14 or no longer has a postal address in the United Kingdom, the Sellers shall immediately:
14.5.1 (subject to this clause 14.5) irrevocably appoint a substitute Sellers’ Representative with a postal address in the United Kingdom; and
14.5.2 notify the Purchaser of the name, relevant contact (where appropriate) and postal and email addresses of the substitute Sellers’ Representative. Such appointment and notice shall be effective on the fifth Business Day after the date on which the notice given pursuant to clause 14.5.2 is deemed to have been served or delivered in accordance with clause 28.
14.6 If, on any occasion, there is no Sellers’ Representative:
14.6.1 the Purchaser shall be required entitled to give effect deal with the Sellers instead;
14.6.2 (except in clause 1 and in this clause 14) references in this agreement to the matters described Sellers’ Representative shall be construed accordingly; and
14.6.3 for the purposes of clause 28.3, the relevant contact (where appropriate) and postal and email addresses of the Sellers shall be as set out in Clause 16.1column (2) of schedule 1.
Appears in 1 contract
Sources: Share Purchase Agreement (Graco Inc)
Sellers’ Representative. 16.1 17.1 Each of the Sellers who are a party to this Agreement (excluding the Fund Sellers) hereby unconditionally and irrevocably appoints the Sellers’ Representative as as:
17.1.1 his agent for service of process and any other documents in proceedings in England or any other proceedings in connection with any Transaction Document (and any claim form, judgment or other notice of legal process shall be sufficiently served on any Seller or TCF if delivered to the Sellers’ Representative in accordance with Clause 18); and
17.1.2 his sole representative and attorney for the purposes of accepting notices, granting any consent or approval, signing any documents or deeds and generally taking such action and doing such things on behalf of the Sellers as may be required in accordance with the provisions of this agreement; and the Buyers and TCF shall be entitled to act rely on anything done by the Sellers’ Representative in accordance with this Clause 17 as if such thing had been done by the relevant Seller and/or TCF.
17.2 Subject to Clauses 17.4 and 17.5, each of the Sellers unconditionally and irrevocably undertakes not to revoke the authority of the Sellers’ Representative.
17.3 Each of the Parties agrees that, save in the case of fraud or bad faith, the Sellers’ Representative shall have no personal liability whatsoever to the Sellers or TCF in relation to his exercise of the powers and authorities conferred on him pursuant to this Clause 17. The provisions of this Clause 17.3 shall not, however, in any way affect the Sellers’ Representatives’ liability as a Seller.
17.4 The Sellers may, by a vote comprising at least 70% (seventy per cent.) of their behalf for all purposes under aggregate shareholdings in the Company as at today’s date by nominal value, replace any person who is from time to time performing the role of Sellers’ Representative pursuant to this agreement with another individual or company resident in England by giving written notice to the Sellers’ Representative and TCF and the Buyers in accordance with Clause 18.
17.5 In the event the Sellers’ Representative ceases to be resident in England or in connection the event of his death, incapacity or resignation as the Sellers’ Representative or replacement pursuant to Clause 17.4, the Sellers shall notify the Buyers and TCF in accordance with this Agreement the provisions of Clause 18 of the identity of his successor (being a person referred to in Clause 17.4) within ten (10) Business Days, failing which the Buyers shall be entitled to nominate any of the Warrantors as the Sellers’ Representative and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf shall notify each of the Sellers in accordance with the provisions of Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment 18 of the Consideration;identity of such person nominated.
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined by the 17.6 The Sellers’ Representative shall be and is hereby authorised to act on behalf and as agent of TCF in its sole discretion, in connection with relation to (i) the payment execution of the costs Holdback Letter, and expenses incurred with respect to (ii) the transaction contemplated by this Agreement preparation and the Transaction Documents; and
16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf agreement of the SellersCompletion Accounts in accordance with Schedule 7.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
Appears in 1 contract
Sellers’ Representative. 16.1 (a) Each Seller designates as its true and lawful representative, agent and attorney-in-fact of such Seller WGLM (in such capacity, and any successor appointed to serve in such capacity, the “Sellers’ Representative”) solely for the express purpose of acting in the name of and on behalf of such Seller in each of the Sellers who are a party to following: (i) giving and receiving all notices or consents permitted or required by this Agreement and otherwise acting on Sellers’ behalf hereunder for all purposes expressly specified herein, to the extent specified herein and subject to any limitations on such authority included in this Agreement or any other Contract between Sellers’ Representative and one or more Sellers; (excluding ii) attending to any and all matters related to the Fund Closing in accordance with Section 2.4, including executing and delivering the executed Escrow Agreements under Section 2.4(b) and the certificate described in Section 8.2(e) and receiving Buyer’s deliverables pursuant to Section 2.4(c) (provided that Sellers’ Representative shall have no authority to waive conditions to Closing on behalf of the other Sellers or to allocate or direct the payment of funds hereunder other than as expressly set forth hereunder); (iii) hereby irrevocably appoints communicating to Buyer any amounts determined in accordance with, and coordinating the resolution of any dispute under, Section 2.3; (iv) providing DS Updates in accordance with Section 6.6; (v) coordinating the resolution of any dispute relating to Tax Returns in accordance with Section 7.1 and preparing the Transfer Tax Returns in accordance with Section 7.3, (vi) coordinating the resolution of any dispute relating to the allocation statement in accordance with Section 7.5(b); (vii) administering, controlling and satisfying any Third-Party Claim in accordance with Section 9.3; (viii) submitting Joint Directions to the Escrow Agent for the release of Escrow Funds in accordance with Section 2.5, Section 7.1, Section 7.3 and Section 9.5(b) and (ix) making, executing, acknowledging and delivering all such notices, requests, instructions, instruments, certificates, letters and other writings, and in general doing all things and taking all actions that Sellers’ Representative may consider necessary or proper in connection with any of the foregoing, subject in all respects to any limitations on such authority included in this Agreement or any other Contract between Sellers’ Representative and one or more Sellers. All actions taken hereunder by Sellers’ Representative shall be deemed to be taken on behalf of Sellers as a group, and not on behalf of itself in its capacity as a Seller.
(b) By executing this Agreement, WGLM (i) accepts its appointment and authorization to act as Sellers’ Representative as attorney-in-fact and agent on behalf of Sellers in accordance with the representative terms of this Agreement and (ii) agrees to perform its obligations under, and otherwise comply with, this Section 11.15.
(c) If WGLM or any successor Sellers’ Representative ceases to function in its capacity as Sellers’ Representative for any reason whatsoever, then Sellers shall have the Sellers right to act appoint a successor Sellers’ Representative by written notice to Buyer signed by each Seller other than the Seller serving as Sellers’ Representative.
(d) Each Seller hereby authorizes Buyer and its Affiliates to rely in good faith on their behalf for all purposes under any action taken by Sellers’ Representative in accordance with the terms of this Agreement as having been fully and properly authorized by Sellers.
(e) Notwithstanding anything herein to the contrary, Sellers’ Representative shall not have any liability to Buyer or any other Buyer Indemnified Party in connection with this Agreement Agreement, except to the extent such liability is a result of Sellers’ Representative’s gross negligence, willful misconduct or Fraud, or incurred in the Person serving as Sellers’ Representative’s capacity as a Seller hereunder, it being understood and agreed that Sellers’ Representative is acting solely as the Transaction Documents, including without limitation representative of Sellers and solely for the purposes of:
16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellersset forth herein.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Sellers’ Representative. 16.1 (a) Each Seller approves the designation of and designates ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the representative of Sellers who are a party and as the attorney-in-fact and agent for and on behalf of each Seller (the “Sellers’ Representative”) with respect to claims under this Article 7, disputes under Section 9.11, and all other matters under this Agreement (excluding where reference is made to the Fund Sellers) hereby irrevocably appoints ’ Representative, and the taking by the Sellers’ Representative as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may and the making of any decisions required or permitted to be taken by the Sellers’ Representative under this Agreement, including the exercise of the power to:
(i) authorize, agree to, or initiate any proceeding challenging any proposed Final Working Capital Certificate or the amount of any adjustments to the Purchase Price pursuant to Sections 2.05, 2.06 and 2.07 of this Agreement;
(ii) agree to, negotiate, enter into settlements and compromises of, initiate legal proceedings with respect to and comply with orders of courts and awards of arbitrators with respect to, any claims arising under this Article 7;
(iii) arbitrate, resolve, settle or compromise any claim made under this Article 7; and
(iv) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the foregoing.
(b) In addition to the matters set forth in Section 7.12(a), the Sellers’ Representative will have authority and power to act on behalf of each Seller with respect to the disposition, settlement or desirableother handling of:
(i) all claims under this Article 7;
(ii) all rights and obligations arising under this Article 7;
(iii) all disputes under Section 9.11 of this Agreement;
(iv) any disputes, as determined claims or other proceedings relating to the adjustments described in Sections 2.05, 2.06 and 2.07 of this Agreement;
(v) any election to waive any condition or provision of this Agreement; and
(vi) the execution and delivery of any certificates, certifications, representation letters, or other documents required to be delivered by Sellers pursuant to the terms of this Agreement. PR01/ 1471369.15
(c) Sellers will be bound by all actions taken and documents executed and delivered by the Sellers’ Representative in its sole discretionhis capacity as Sellers’ Representative hereunder, including actions taken in connection with the payment of the costs Sections 2.05, 2.06 and expenses incurred with respect 2.07 and this Article 7, and Buyer will be entitled to the transaction contemplated by this Agreement and the Transaction Documents; and
16.1.9 generally taking rely on any and all other actions and doing any and all other things provided in action or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion decision of the Sellers’ Representative.
(d) In performing the functions specified in this Agreement, the Sellers’ Representative will not be required liable to give effect either Seller or Buyer in the absence of willful misconduct on the part of the Sellers’ Representative. Sellers will jointly and severally indemnify the Sellers’ Representative and hold him harmless against any Loss incurred without willful misconduct on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(e) The Sellers’ Representative will not be entitled to receive any compensation from Buyer, Sellers or the Company in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Sellers’ Representative in connection with actions taken by the Sellers’ Representative under the terms of this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid by Sellers (on a pro rata basis in accordance with their respective Ownership Interests) to the matters described Sellers’ Representative.
(f) If the individual serving as the Sellers’ Representative dies, becomes unable to perform the responsibilities hereunder or resigns, a substitute representative will be appointed by Sellers representing a majority of the Closing Cash Payment to be received by Sellers as set forth in Clause 16.1.Section 3.03
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (GAIN Capital Holdings, Inc.)
Sellers’ Representative. 16.1 (a) Each Seller approves the designation of the Sellers who are a party to this Agreement (excluding the Fund Sellers) hereby irrevocably appoints the Sellers’ Representative and designates ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the representative of Sellers and as the Sellers to act on their behalf attorney-in-fact and agent for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of each Seller (the Sellers in accordance “Sellers’ Representative”) with Clause 19;
16.1.2 delivering payment instructions respect to claims under this Article 7, disputes under Section 9.11, and all other matters under this Agreement where reference is made to the Buyer in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each SellerSellers’ Representative, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretionof any and all actions and the making of any decisions required or permitted to be taken by the Sellers’ Representative under this Agreement, in connection with including the payment exercise of the costs power to: (i) authorize, agree to, or initiate any proceeding challenging any proposed Final Working Capital Certificate or the amount of any adjustments to the Purchase Price pursuant to Sections 2.05, 2.06 and expenses incurred 2.07 of this Agreement; (ii) agree to, negotiate, enter into settlements and compromises of, initiate legal proceedings with respect to and comply with orders of courts and awards of arbitrators with respect to, any claims arising under this Article 7; (iii) arbitrate, resolve, settle or compromise any claim made under this Article 7; and (iv) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. (b) In addition to the matters set forth in Section 7.12(a), the Sellers’ Representative will have authority and power to act on behalf of each Seller with respect to the transaction contemplated by disposition, settlement or other handling of: (i) all claims under this Agreement Article 7; (ii) all rights and obligations arising under this Article 7; (iii) all disputes under Section 9.11 of this Agreement; (iv) any disputes, claims or other proceedings relating to the Transaction Documentsadjustments described in Sections 2.05, 2.06 and 2.07 of this Agreement; and
16.1.9 generally taking (v) any election to waive any condition or provision of this Agreement; and all (vi) the execution and delivery of any certificates, certifications, representation letters, or other actions and doing any and all other things provided in or contemplated by this Agreement documents required to be performed delivered by Sellers pursuant to the Sellers or the Sellers’ Representative on behalf terms of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.. -50- PR01/ 1471369.15
Appears in 1 contract
Sellers’ Representative. 16.1 Each (a) In order to efficiently administer the transactions contemplated hereby, including, without limitation (i) final determination of all matters under Sections 1.3(c), 1.6, 1.7, 1.8 and 1.9, including, without limitation, the Share Percentage, Asset Percentage, the Blended Percentage, Closing Base EBIT, Sellers’ Base EBIT, Final Base EBIT, Estimated Closing Date Working Capital, Sellers’ Working Capital, Final Closing Date Working Capital, the Preliminary Base Purchase Price, the Sellers’ Base Purchase Price, the Final Base Purchase Price, the Final Purchase Price, Base Earn-out Consideration, Additional Earn-out Consideration, Earn-out Consideration, EBIT of the Business Unit, Target EBIT, and Acquired Entity EBIT (collectively, the “Determined Matters”), (ii) the waiver of any condition to the obligations of the Sellers who are a party to consummate the transactions contemplated hereby, (iii) the defense and/or settlement of any claims for which the Sellers may be required to indemnify the Buyer Parties pursuant to Article VIII hereof, and (iv) give and receive all notices required to be given under this Agreement (excluding Agreement, the Fund Sellers) Sellers hereby irrevocably appoints designate the Sellers’ Representative as their representative.
(b) The Sellers hereby authorize the representative Sellers’ Representative (i) to make all decisions relating to the final determination of all matters under Sections 1.6, 1.7, 1.8 and 1.9, including, without limitation, the Determined Matters, including resolution of objections under Sections 1.7 and 1.9, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Sellers to act on their behalf consummate the transactions contemplated hereby, (iii) to defend and/or settle or compromise claims for which the Sellers may be required to indemnify the Buyer Indemnified Parties pursuant to Article VIII hereof, (iv) to give and receive all purposes notices required to be given under this Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers by the terms of this Agreement.
(c) In the event that the Sellers’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Sellers holding, prior to the Closing Date, a majority of the Shares shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Sellers’ Representative, including final determination of all matters under Sections 1.6, 1.7, 1.8 and 1.9, including, without limitation, the Determined Matters, including resolution of objections under Sections 1.7 and 1.9, or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer Indemnified Parties pursuant to Article VIII hereof and any and all additional action as is contemplated to be taken by or on behalf of the Sellers, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(e) By his or her execution of this Agreement, each Seller agrees that:
(i) FTI and the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers’ Representative as to final determination of all matters under Sections 1.6, 1.7, 1.8 and 1.9, including, without limitation, the Determined Matters, including resolution of objections under Sections 1.7 and 1.9, or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer Indemnified Parties pursuant to Article VIII hereof and any and all additional action as is contemplated to be taken by or on behalf of the Sellers, permitted to be taken by the Sellers’ Representative hereunder, and no party hereunder shall have any cause of action against the Buyer Parties for any action taken by the Buyer Parties in accordance with Clause 19reliance upon the written instructions of the Sellers’ Representative;
16.1.2 delivering payment (ii) all actions, decisions and instructions to of the Buyer Sellers’ Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers’ Representative for any action taken, decision made or instruction given by the Sellers’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers’ Representative;
(iii) the provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Sellers may have in connection with the payment of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to transactions contemplated by the Transaction Documents;
16.1.6 delivering (iv) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement to and consulting with the Buyer on any Allocation Schedule a Seller or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under shall mean and include the successors to the Sellers’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or relating otherwise; and
(v) to the extent permitted by law, the Sellers shall indemnify and hold harmless the Sellers’ Representative against any losses, claims, expense, cause of action, damages or liabilities (joint or several) to which the Sellers’ Representative may become subject in connection with fulfilling the role of Sellers’ Representative as contemplated by this Agreement Agreement, and shall reimburse the Transaction Documents;Sellers’ Representative for any legal or other expenses reasonably incurred in connection with investigating and defending any such loss, claim, damage, liability or action.
16.1.8 taking any (f) All fees and all actions that may be necessary or desirable, as determined expenses incurred by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the transaction contemplated shall be paid by this Agreement and the Transaction Documents; and
16.1.9 generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by the Sellers or the Sellers’ Representative on behalf of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoints the Sellers’ Representative as its attorney with full authority on its behalf and in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion of the Sellers’ Representative, be required to give effect to the matters described in Clause 16.1.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Fti Consulting Inc)
Sellers’ Representative. 16.1 (a) Each of the Sellers who are a party to this Agreement (excluding the Fund Sellers) Seller hereby irrevocably appoints the ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (acting jointly pursuant to Section 8.14(g)) as Sellers’ Representative to act as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement agent and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of such Sellers regarding any matter relating to or under this Agreement, the Sellers in accordance 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) making decisions with Clause 19;
16.1.2 delivering payment instructions respect to the Buyer determination of Final Purchase Price, Closing Net Working Capital, Closing Cash and Cash Equivalents, Closing Indebtedness, Seller Expenses and other matters under Section 2.4(b); (ii) determining whether the conditions to Closing in Article X have been satisfied and supervising the Closing, including waiving any condition, as determined by Sellers’ Representative, in its sole discretion; (iii) taking any action that may be necessary or desirable, as determined by Sellers’ Representative, in its sole discretion, in connection with the payment termination of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers under or relating to this Agreement and the Transaction Documents;
16.1.8 in accordance with Article XI or any other SR Agreement; (iv) taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative Representative, in its sole discretion, in connection with the payment amendment of this Agreement in accordance with Section 12.1 or any other SR Agreement; (v) accepting notices on behalf of Sellers in accordance with Section 12.4 or any other SR Agreement; (vi) executing and delivering, on behalf of Sellers, any and all notices, documents or certificates to be executed by Sellers, in connection with the SR Agreements and the transactions contemplated thereby; and (vii) granting any consent, waiver or approval on behalf of Sellers under the SR Agreements. As the representative of Sellers under the SR Agreements, Sellers’ Representative shall act as the agent for all Sellers, shall have authority to bind each such Person in accordance with the SR Agreements, and Buyer may conclusively rely on such appointment and authority 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 SR Agreements in writing and signed by an authorized person of Sellers’ Representative. All decisions and actions by Sellers’ Representative (to the extent authorized by this Agreement, including pursuant to Section 8.14(g)) shall be binding upon all Sellers, and no Seller shall have the right to object, 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 respect to the transaction contemplated by performance of its obligations under this Agreement and each of the Transaction Documents; 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
16.1.9 generally taking , 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 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 actions 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 doing 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 powers of substitution and resubstitution, in such Seller’s name, place and stead, in any and all other things provided capacities, in or connection with the transactions contemplated by the SR Agreements, 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 the Acquired Securities, as fully to all intents and purposes as such Seller might or could do in person.
(e) 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 be performed any other Seller under this Agreement for any action or omission by the Sellers or the Sellers’ Representative on behalf of the other Sellers.
16.2 (f) Each Seller hereby irrevocably (by way of security for acknowledges that they have had the performance of its opportunity to consult with independent legal counsel, whether or not any such Seller chose to do so, regarding such Seller’s rights and obligations under this Agreement) appoints , including for the Sellers’ Representative as its attorney with full authority on its behalf and in avoidance of doubt the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion appointment of the Sellers’ Representative, be required to give effect and that such Seller fully understands the terms of this Agreement and acknowledges that the terms hereof, including for the avoidance of doubt the appointment of Sellers’ Representative, are reasonable and necessary and such terms are valid, binding and enforceable in accordance with their terms.
(g) For the avoidance of doubt and notwithstanding anything herein to the matters described contrary, ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby covenant and agree that all decisions and actions of Sellers’ Representative shall be made jointly and unanimously by both ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the Parties hereby agree that any references in Clause 16.1this Agreement to decisions and actions by Sellers’ Representative must require the written consent (email to suffice) or signature of both ZMC Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ZMC Seller shall be permitted to assign its duties and obligations as Sellers’ Representative 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 ZMC Seller’s role as Sellers’ Representative hereunder upon such assignment by ZMC Seller and (ii) be bound by the 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 obligations (including pursuant to this 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 apply to such Affiliate assignee of ZMC Seller, mutatis mutandis.
Appears in 1 contract
Sellers’ Representative. 16.1 Each 21.1 The Sellers' Representative is given on behalf of each Specified Shareholder or each Warrantor as appropriate the power to:
(a) negotiate and agree the Agreed Form documents:
(b) agree an extension to the Long Stop Date past 2 January 2015;
(c) comply and act in accordance with the provisions of clauses 2.3 and 2.5;
(d) comply and act in accordance with the provisions of clause 4.7;
(e) comply and act in accordance with the provisions of clause 5.1, 5.3 and 5.5;
(f) comply and act in accordance with the provisions of clauses 6.3, 6.4 and 6.5;
(g) comply and act in accordance with the provisions of clauses 7.3 and 7.4;
(h) comply and act in accordance with the provisions of clauses 16, 17, 18 and 22;
(i) comply and act in accordance with the provisions of Schedule 5, Schedule 7, Schedule 8 and Schedule 10.
(j) defend, compromise, settle, negotiate and appoint professional advisors in respect of the Sellers who are same in respect of any Relevant Claim other than in relation to a party to this Agreement (excluding the Fund Sellers) hereby irrevocably appoints breach of clause 12 or a Title Claim. The Parties acknowledge that actions of the Sellers’ Representative as the representative of the Sellers to act on their behalf for all purposes under or in connection with this Agreement and the Transaction Documents, including without limitation for the purposes of:
16.1.1 accepting notices on behalf of the Sellers taken in accordance with Clause 19;
16.1.2 delivering payment instructions to the Buyer in connection with the payment this clause 21 shall be valid and binding on each of the Consideration;
16.1.3 determining the Proportionate Share payable to each Seller, including pursuant to Clause 3.1.2;
16.1.4 agreeing with the Buyer on the final Completion Statement;
16.1.5 agreeing with the Buyer on any Claims, Tax Warranty Claims, Tax Covenant Claims, Fundamental Warranty Claims Specified Shareholders as if taken by such Specified Shareholder or other claims pursuant to the Transaction Documents;
16.1.6 delivering to and consulting with the Buyer on any Allocation Schedule or Final Allocation Schedule;
16.1.7 granting any consent or approval, or signing any amendment or settlement, on behalf of the Sellers Warrantor. The Buyer's rights under or relating to this Agreement and the Transaction Documents;
16.1.8 taking shall not be prejudiced by reason of any and all actions that may be necessary action or desirable, as determined omission by the Sellers’ ' Representative which is not consented to by any Specified Shareholder or Warrantor.
21.2 The Specified Shareholders agree that the Buyer shall be entitled to rely on notices given to and by the Sellers' Representative in its sole discretion, in connection accordance with the payment this agreement as if given to and by each of the costs Specified Shareholders and expenses incurred with respect Warrantors and (where the Sellers' Representative is expressly empowered to the transaction contemplated do so by this Agreement and the Transaction Documents; and
16.1.9 generally taking agreement) shall be entitled to rely on any and all other actions and doing any and all other things provided in waiver or contemplated by this Agreement to be performed consent given by the Sellers or Sellers' Representative in accordance with this agreement as if given by each of the Specified Shareholders. For these purposes, the appointment of the Sellers’ ' Representative shall be conclusively binding on behalf each of the Sellers.
16.2 Each Seller hereby irrevocably (by way of security for 21.3 The Specified Shareholders may notify the performance of its obligations under this Agreement) appoints Buyer that they have chosen another person to be the Sellers’ ' Representative to replace either or both of the individuals then acting as its attorney with full authority such. Any such notice shall be in writing and signed by or on its behalf of all of the Specified Shareholders and the change in the Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as required by law or as may, in the reasonable opinion identity of the Sellers’ Representative' Representative shall take effect five Business Days after notice of the change is received by the Buyer or (if later) on the date (if any) specified in the notice as the date on which the change is to take effect. Until any such notice is received by the Buyer, the Buyer shall continue to be required entitled to give effect notices to and to rely on notices given by the matters described last Sellers' Representative of whom it had actual knowledge.
21.4 The Sellers' Representative shall duly comply with the obligations of the Sellers' Representative in Clause 16.1this agreement and in any other Transaction Document.
21.5 As between the Sellers' Representative and the Specified Shareholders, the Sellers' Representative agrees:
(a) to exercise the rights and powers conferred on him as a Sellers' Representative under this agreement in good faith;
(b) to provide a copy of any notice received by him in his capacity as a Sellers' Representative under this agreement to GS and on request from time to time, any other Specified Shareholder, as soon as reasonably practicable after receipt (and in any event within three (3) Business Days); and
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Thestreet, Inc.)