Sellers’ Representative. (a) Each Seller hereby appoints Clean Streak Ventures Holdco, LLC as its, his or her agent and attorney-in-fact, as Sellers’ Representative for and on behalf of the Sellers relating to this Agreement and the Transactions: (i) to give and receive notices and communications, (ii) to receive service of process with respect to any claim under this Agreement, (iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement, (iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers, (v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims, (vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and (vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller. (b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages. (c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers. (d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative. (e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto. (f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative. (g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is hereby appoints Clean Streak Ventures Holdco, LLC irrevocably constituted and appointed as its, his or her the true and lawful agent and attorney-in-fact, as Sellers’ Representative for and on behalf fact of each stockholder of the Sellers relating Company as of the date hereof and immediately prior to the Effective Time (the "REPRESENTATIVE") with full powers of substitution to act in the -------------- name, place, and stead of each such stockholder with respect to the stockholder's performance under terms and provisions of this Agreement and the Transactions:
(i) each Company Ancillary Document and to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take do or refrain from taking doing all other actionsuch further acts and things, and to execute and deliver all additional agreements, such documents, certificates and instruments, as Sellers’ the Representative may will deem necessary or appropriate in connection with any of the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Sellertransactions contemplated under this Agreement.
(b) Such agency The Representative's appointment will be deemed coupled with an interest and will be irrevocable, and any other Person may be changed by the Sellers from time to time conclusively and absolutely rely, without inquiry, upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest any actions of the Sellers (calculated on Representative as the basis collective acts of pro rata percentages of net proceeds each stockholder of the Purchase Price received by each Seller) agree to such removal and to the identity Company as of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not date hereof and immediately prior to the appointment Effective Time in all matters referred to in this Agreement. Each such stockholder ratifies and confirms all actions that the Representative will take or cause to be taken by virtue of a substitute Sellers’ the Representative's appointment. A vacancy On all matters set forth in this Agreement, the Representative will act for such stockholders in the position of Sellers’ manner that the Representative may believes to be filled by in the affirmative vote of a majority in best interest of such stockholders, but the Sellers (calculated on the basis Representative will not be responsible to any such stockholder for any loss or damage that such stockholder may suffer by reason of the Allocation Percentages). No bond shall be required Representative's performance of Sellers’ the Representative. Notices 's duties under this Agreement, other than loss or communications to or from Sellers’ Representative shall constitute notice to or damage arising from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems Representative's willful misconduct in its sole discretion to be necessary or appropriate in connection with its performance of its obligations performing the Representative's duties under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation PercentagesAgreement.
(c) Sellers’ Each stockholder of the Company as of the date hereof and immediately prior to the Effective Time expressly acknowledges and agrees that the Representative shall is authorized to act on behalf of such stockholder notwithstanding any dispute or disagreement among the Company Stockholders, and that any Person will be entitled to rely on any and all action taken by the Representative under this Agreement without liability to, or obligation to inquire of, any of such stockholders. If the Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Representative will be the Person appointed by such stockholders; provided, however, that, if for any reason no successor has been appointed -------- ------- within 30 days after the Representative ceases to function as the Representative, then any such stockholder will have the right to recover from, at its sole discretion, petition a court of competent jurisdiction for appointment of a successor Representative. Each such stockholder agrees to indemnify and hold the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity harmless from and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to and all liability, loss, cost, damage, or expense (including attorneys' fees) reasonably incurred or suffered as a result of the Sellers.
(d) A decision, act, consent or instruction Representative's performance of Sellers’ the Representative, including an amendment, extension or waiver of 's duties under this Agreement, shall constitute a decision except in cases of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse [SIGNATURE PAGES TO FOLLOW] The Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless caused this Agreement to be duly executed as of the legal theory under which such liability or obligation may be sought to be imposedAgreement Date. CONCURRENT COMPUTER CORPORATION By: --------------------------------- Name: --------------------------------- Title: -------------------------------- STREAM ACQUISITION, whether sounding in contract or tortINC. By: --------------------------------- Name: --------------------------------- Title: -------------------------------- EVERSTREAM HOLDINGS, or whether at law or in equityINC. By: --------------------------------- Name: --------------------------------- Title: -------------------------------- REPRESENTATIVE: --------------------------------- SELLERS: CANOE EVERSTREAM, or otherwiseLLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ---------------------------- EVERSTREAM, if any such Person took or omitted taking any action in good faith.LLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ---------------------------- --------------------------------- ▇▇▇ ▇▇▇▇▇▇ --------------------------------- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LAUDER PARTNERS LLC: BY: ------------------------------- BY: ------------------------------- NAME: ----------------------------- TITLE: ----------------------------
Appears in 1 contract
Sellers’ Representative. (a) Each Seller hereby appoints Clean Streak Ventures HoldcoThe Sellers, LLC without any further action on the part of any of them, consent to the appointment of Vækstfonden, as itsthe representative of the Sellers (the “Sellers’ Representative”), his or her agent and as the attorney-in-fact, as Sellers’ Representative fact for and on behalf of the Sellers relating to this Agreement each such Seller, and the Transactions:
taking by the Sellers’ Representative of any and all actions and the making of any decisions required or permitted to be taken by each Seller under this Agreement, including, without limitation, the exercise of the power to (i) authorize delivery to give and receive notices and communications,
the Buyer of the Escrow Fund, or any remaining portion thereof, in payment of the Sellers’ obligations pursuant to Section 2.3(g), (ii) authorize delivery to receive service the Buyer of process with respect the Escrow Fund and/or [* * *], or any remaining portion thereof, in payment of indemnification claims by the Buyer and its Affiliates (including the Company and the Subsidiary) and the respective Representatives, successors and assigns of each of the foregoing pursuant to any claim under this Agreement,
Article VIII, (iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, of and comply with awards of arbitrators and, if applicable, orders of courts and awards of arbitrators with respect to such claims,
adjustments to the Base Purchase Price and/or Adjusted Purchase Price and/or indemnification claims and/or disputes relating to Additional Consideration, (viiv) resolve any adjustments to assert, negotiate, enter into settlements and compromises ofthe Base Purchase Price and/or Adjusted Purchase Price and/or indemnification claims and/or disputes relating to Additional Consideration, and demand arbitration and comply with orders (v) take all actions necessary in the judgment of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as the Sellers’ Representative may deem necessary or appropriate in connection with for the Transactionsaccomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Such agency and proxy are coupled with an interestAccordingly, are therefore irrevocable without the consent of Sellers’ Representative has authority and shall survive the death, incapacity, bankruptcy, dissolution or liquidation power to act on behalf of each Seller.
(b) Such agency may be changed by Seller with respect to all matters related to this Agreement and the Sellers disposition, settlement or other handling of all indemnification claims, rights or obligations arising from time and taken pursuant to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyerthis Agreement including, but in any eventnot limited to, not prior the authority and power to the appointment receive notices on behalf of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled Any notice provided to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne deemed to have been provided to all the Sellers. The Sellers shall be bound by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, all actions taken by the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of connection with this Agreement, and the Buyer, the Company and the Escrow Agent shall constitute a be entitled to rely on any action or decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(eb) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to The Sellers’ Representative shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the benefit Sellers’ Representative’s own willful misconduct or gross negligence. In all questions arising under this Agreement, the Sellers’ Representative may rely on the advice of counsel, and the Sellers’ Representative shall not be liable to Sellers for anything done, omitted or suffered in good faith by the Sellers’ Representative based on such advice.
(c) Sellers who in the aggregate hold at least a majority of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer Shares prior to the Sellers with respect thereto. All notices or other communications required Closing shall have the right at any time to be made or delivered by any Seller remove the then-acting Sellers’ Representative and to Buyer appoint a successor Sellers’ Representative; provided, however, that neither such removal of the then acting Sellers’ Representative nor such appointment of a successor Sellers’ Representative shall be made effective until the delivery to the Buyer and to the Escrow Agent of executed counterparts of a writing signed by Sellers’ Representative for holding such majority interest in the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer Shares with respect thereto.
(f) The Sellers hereby agree to severally indemnify such removal and appointment, together with an acknowledgment signed by the successor Sellers’ Representative (appointed in its capacity as such) in proportion to their respective Allocation Percentages against and to hold such writing that he or she accepts the responsibility of successor Sellers’ Representative (in its capacity as such) harmless from and waive, any agrees to perform and be bound by all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the provisions of this Agreement applicable to the Sellers’ Representative. Each successor Sellers’ Representative in such capacity in any way relating to or arising out shall have all of its action or failures to take action pursuant tothe power, or in connection withauthority, rights, privileges and obligations conferred by this Agreement upon the original Sellers’ Representative, and the term “Sellers’ Representative” as used herein and in such capacity; provided, that no Seller the Escrow Agreement shall be liable for deemed to include any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of successor Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Micro Circuits Corp)
Sellers’ Representative. (a) Each Seller and each Member, by execution and delivery hereof, hereby designates and appoints Clean Streak Ventures Holdco, LLC as its, his or her agent and attorney-in-fact▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Sellers’ Representative”), as Sellers’ Representative agent for and on behalf of the Sellers relating to this Agreement each Seller and each Member, and the Transactions:
(i) true and lawful attorney in fact of each Seller and each Member, with full power and authority in each of each Seller’s and each Member’s names, to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize enter into, on behalf of each such Seller and Member, amendments, consents and waivers under this Agreement pursuant to the terms set forth herein, to make and receive payments on behalf of each Seller and each Member pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the Purchase Pricedetermination of the 2016 Adjusted EBITDA Amount and the payment of any Earnout Amount pursuant to Section 3.3, the Purchase Price Adjustment and defense and/or settlement of any other payments indemnification claims of any Seller Indemnitee pursuant to Article X, the initiation and/or settlement of any claims pursuant to Article VII, to take all actions authorized by the Escrow Agreement, including defending or settling any claims thereunder and releasing and transferring any of the Escrowed Cash or Escrowed Shares to the Company in accordance with the terms of this Agreementset forth therein, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem actions necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without judgment of the consent of Sellers’ Representative for the accomplishment of the foregoing. All such actions of the Sellers’ Representative shall be binding on each Seller and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(b) Member. Such agency may be changed by a vote or written consent by the holders of a majority of the membership interests of Sellers as of the Closing Date, voting in the same manner as would have been voted in accordance with the organizational documents of the Sellers as in effect immediately prior to the Closing Date (the “Majority Holders”), from time to time upon not less than twenty ten (2010) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyerthe Company and Parent. If at any time the Sellers’ Representative resigns, but in any eventdies or becomes incapable of acting, the Majority Holders shall choose another Person to act as the Sellers’ Representative under this Agreement. The Sellers or Members may not prior make a claim for indemnity against Buyer or Holdings pursuant to this Agreement except through the appointment of a substitute Sellers’ Representative. A vacancy in , who shall make such a claim only upon the position written direction of the Majority Holders.
(b) Once the Sellers’ Representative may be filled by the affirmative vote of has initiated a majority in interest claim for indemnity, all acts and decisions of the Sellers (calculated Sellers’ Representative in connection with such matter shall be binding on the basis of Sellers and all the Allocation Percentages)Members. No bond shall be required of the Sellers’ Representative, and the Sellers’ Representative shall receive no compensation for services provided hereunder. Notices or communications to or from the Sellers’ Representative shall constitute notice to or from the Sellers. Sellers and each of the Members.
(c) The Sellers’ Representative shall will be entitled to retain counsel engage such counsel, experts and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) other agents as the Sellers’ Representative deems in its sole discretion to be necessary or appropriate proper in connection with its performance of its performing the Sellers’ Representative's obligations under this Agreement hereunder, and will be promptly reimbursed by the Sellers and Members for all such costs reasonable expenses, disbursements and expenses advances incurred by the Sellers’ Representative in such capacity upon demand. The Members shall be borne severally indemnify and hold harmless the Sellers’ Representative, in proportion to each Member’s percentage ownership of the membership interests of Sellers as of the Closing, with respect to any and all damages that are incurred by the Sellers based on Sellers’ Representative as a result of actions taken, or actions not taken, by the Allocation Percentages.
(c) Sellers’ Representative herein, except to the extent that such damages arise from the gross negligence or willful misconduct of the Sellers’ Representative. The Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution not be liable to the Sellers, Sellers and Members for any act done or omitted hereunder as Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellersexcluding acts which constitute gross negligence or willful misconduct.
(d) The Sellers’ Representative shall promptly pay to the Sellers and the Members in accordance with the terms hereof all amounts received by the Sellers’ Representative on behalf of the Sellers and the Members under this Agreement; provided, however, that the Sellers’ Representative will be entitled to set off any amounts payable to the Sellers’ Representative under this Section 11.13(d) against amounts otherwise payable to the Sellers and Members pursuant to this Section 11.13(d) or released Escrowed Cash or Escrowed Shares for the benefit of the Sellers and Members.
(e) This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any act of any of the Sellers and Members (except as otherwise provided herein) or by operation of law, whether by the death or incapacity of any Members or by the occurrence of any other event. A decision, act, consent or instruction of the Sellers’ Representative, including an amendment, extension Representative in respect of any action under this Agreement or waiver of this Agreement, the Escrow Agreement shall constitute a decision of the Sellers and all of the Members and shall be final, binding and conclusive upon the SellersSellers and the Members, and Buyer the Company, Parent and Holdings may conclusively and absolutely, rely, without any inquiry, rely upon any such decision, act, consent or instruction of the Sellers’ Representative hereunder as being the decision, act, consent or instruction of each Seller and each and every such Member and any other Members. The Company, Parent and Holdings shall be able to rely conclusively on the proper distribution of such amounts by the Sellers’ Representative among the Sellers and the Members upon receipt by the Sellers’ Representative of such amounts. Buyer is The Company, Parent and Holdings are hereby relieved from any liability to any Person, Person (including any Seller, Members or any other Member) for any acts done by it them in accordance with or reliance on such decision, act, consent or instruction of the Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer , to the Sellers shall be made extent delegated to the Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect theretohereunder.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against provisions of this Section 11.13 are independent and to hold Sellers’ Representative (in its capacity as such) harmless from severable, are irrevocable and waive, coupled with an interest and shall be enforceable notwithstanding any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses rights or disbursements of whatever kind which remedies that any Person may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or have in connection with, with the transactions contemplated by this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ RepresentativeAgreement.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sellers’ Representative. (a) Each In order to efficiently administer (i) the determination and payment of the Final Closing Statement of Net Working Capital and the Working Capital Adjustment, (ii) the distribution of any amounts payable or distributable to Sellers, (iii) the waiver of any condition to the obligations of the Company or the Sellers to consummate the Contemplated Transactions, and (iv) the defense and/or settlement of any Proceedings with respect to which the Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, by approving this Agreement, or by executing and delivering any of the Closing deliveries contemplated by the Contemplated Transactions, Sellers hereby designate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as their representative (the “Sellers’ Representative”).
(b) Sellers, by executing this Agreement, shall authorize the Sellers’ Representative (i) to make all decisions relating to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital and the Working Capital Adjustment, (ii) to make all decisions relating to the distribution of any amounts payable or distributable to or from Sellers hereunder, in accordance with this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company or the Sellers to consummate the Contemplated Transactions, or the defense and/or settlement of any Proceedings with respect to which Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, (iv) to give and receive all notices required to be given under this Agreement or the Escrow Agreement, (v) to take any and all additional action as is contemplated to be taken by or on behalf of Sellers by the terms of this Agreement or the Escrow Agreement, (vi) to take all other actions to be taken by or on behalf of Sellers in connection herewith, (vii) to withhold funds to pay Seller-related expenses and obligations, (viii) to withhold additional funds as determined by the Sellers’ Representative in its discretion to pay future or contingent Seller hereby appoints Clean Streak Ventures Holdcoexpenses and obligations and (ix) to seek recourse against any Seller for the benefit of the other Sellers in the event of a disbursement to the Buyer or the Company due to any breach of the representations and warranties made by such Seller as to himself, LLC herself, or itself and his, her or its Shares and/or Options in a Closing delivery.
(c) In the event that the Sellers’ Representative becomes unable to perform his responsibilities hereunder or resigns from such position, Sellers holding, prior to the Closing, a majority of the Shares outstanding as itsset forth on Schedule 3.3 shall select another representative to fill such vacancy, his or her agent and attorney-in-fact, as upon such approval such substituted representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(d) All decisions and on behalf actions by the Sellers’ Representative, including, without limitation, any agreement between the Sellers’ Representative and the Buyer relating to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital or the Working Capital Adjustment or the defense or settlement of any Proceedings with respect to which Buyer or the Company may be entitled to be indemnified pursuant to Section 10.2 hereof, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(e) By approving this Agreement, Sellers relating to this Agreement and the Transactionsagree that:
(i) Buyer and the Company shall be able to give rely conclusively on the written instructions and receive notices decisions of the Sellers’ Representative as to the determination of the Closing Date Purchase Price, the Final Closing Statement of Net Working Capital or the Working Capital Adjustment or the settlement of any claims for indemnification by Buyer or the Company pursuant to Section 10.2 hereof or any other actions required to be taken by the Sellers’ Representative hereunder, and communications,no Seller or party hereunder shall have any cause of action against Buyer or the Company for any action taken by any such Person in reliance upon the instructions or decisions of the Sellers’ Representative;
(ii) to receive service all actions, decisions and instructions of process the Sellers’ Representative in accordance with respect to this Section 11.4 shall be conclusive and binding upon all of the Sellers and no Seller shall have any claim 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 or the Escrow Agreement by the Sellers’ Representative;
(iii) to agree tothe provisions of this Section 11.4 are independent and severable, negotiate, execute are irrevocable and deliver agreements, consents, waivers, documents coupled with an interest and instruments, including amendments, extensions and waivers to this shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the Contemplated Transactions or the Escrow Agreement,;
(iv) the provisions of this Section 11.4 shall be binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement or the Escrow Agreement to agree toa Seller or Sellers shall mean and include the successors to Sellers’ rights hereunder, negotiate whether pursuant to testamentary disposition, the laws of descent and authorize payments distribution or otherwise;
(v) the fees and expenses to be paid at or prior to Closing (either through available cash of the Company or from the Closing Date Purchase Price) shall include the sum of $300,000 to be paid to the Sellers’ Representative and to be used by the Sellers’ Representative for the payment of costs and expenses reasonably incurred by the Sellers’ Representative in connection with the Purchase Price, exercise by it of the Purchase Price Adjustment authority granted to it herein and in the Seller deliveries (including reasonable attorney fees and expenses and the fees and expenses of any accountants or other professional advisors retained by the Sellers’ Representative and any other payments Working Capital Adjustment owed after Closing by Sellers pursuant to the terms of this Agreement). From time to time after the Closing, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate distribute to Sellers, pro rata in connection accordance with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the deathownership of Shares, incapacity, bankruptcy, dissolution or liquidation such portion of each Seller.
(b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) sum as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative reasonably determines will not be needed for the payment of future costs and expenses. After the final resolution of all claims asserted against, or asserted by or on behalf of, Sellers hereunder or under the Escrow Agreement and the final distribution to Sellers of all monies that are or could be distributable to them hereunder or under the Escrow Agreement, any portion of such sum remaining shall be borne by distributed to Sellers pro rata in accordance with the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover fromownership of Shares; provided, at its sole discretionhowever, that if the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any incurs costs and expenses incurred disproportionately due to a Seller’s breach of his, her or its representations and warranties made by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred such Seller in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision one of the Sellers and Seller deliveries as to himself, herself or itself, or his, her or its Shares or Options, such breaching Seller shall be final, binding and conclusive upon reimburse the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of additional costs and expenses disproportionately incurred; and
(vi) they will indemnify and hold harmless the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) Representative, severally and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless jointly, from and waive, against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind damages which may at any time be imposed uponon, incurred by or asserted against the Sellers’ Representative in such capacity in any way relating to or arising out of its this Agreement, or any related agreement or instrument or any action taken or failures omitted to take action pursuant to, be taken by the Sellers’ Representative under or in connection withherewith, this Agreement in unless such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting damages resulted solely from the gross negligence bad faith or willful misconduct of the Sellers’ Representative.
(gf) Neither All fees and expenses reasonably incurred by the Sellers’ Representative nor in excess of $300,000 shall be paid from any of its Non‑Recourse Parties shall incur any liability funds otherwise due to any Seller relating Sellers (including funds due to the performance Sellers from the Escrow and eligible for distribution in accordance with the terms of this Agreement and the Escrow Agreement) in proportion to the Sellers’ Representative’s duties hereunderownership of the Shares and if no funds are available from the Escrow, except for actions or omissions constituting gross negligence or willful misconduct. then directly from Sellers in proportion to the Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless ownership 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 any such Person took or omitted taking any action in good faithShares received by each Seller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standex International Corp/De/)
Sellers’ Representative. (a) Each Seller hereby appoints Clean Streak Ventures HoldcoIn order to efficiently administer (i) the payment of the Purchase Price, LLC as its(ii) the resolution of disputes relating to any Disputed Amounts, his or her agent (iii) the defense and/or settlement of any indemnity claims of any Indemnified Party pursuant to ARTICLE VII, and attorney-in-fact(iv) the Escrowed Amount and the Escrow Agreement, as the Sellers’ Representative is hereby designated by, and agrees to act as the representative of, the Sellers.
(b) By approving this Agreement and/or accepting their proportionate share of the Closing Date Share Purchase Price Payment and the Closing Date Owned Real Property Purchase Price Payment, each Seller hereby constitutes, and the Sellers collectively constitute, the Sellers’ Representative as their agent, proxy, and true and lawful attorney in fact for purposes of, and with full authority on the behalf of each of them: (i) to receive payment of and to allocate the Purchase Price; (ii) to make all decisions relating to the resolution of disputes relating to any Disputed Amounts; (iii) to take all action necessary in connection with the defense and/or settlement of any indemnity claims of any Indemnified Party pursuant to ARTICLE VII; (iv) to give and receive all notices required to be given to the Sellers under this Agreement or the Escrow Agreement; (v) to amend this Agreement in accordance with Section 9.8 and to deliver any Updated Disclosure Schedules pursuant to Section 5.3, and (vi) to take any and all additional action as is contemplated to be taken by the Sellers’ Representative or on behalf of the Sellers relating to this Agreement and the Transactions:
(i) to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement or the Escrow Agreement, and receive and disburse . Each Seller agrees that such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. 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 any Seller. All decisions and actions by the Sellers’ Representative (to the extent authorized by and in accordance with this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Sellers’ Representative shall be entitled to engage such counsel, experts, consultants and other advisors as he shall deem necessary in connection with exercising his powers and performing his functions hereunder and (in the absence of bad faith on the part of the Sellers’ Representative) shall, solely as to the Sellers, be entitled to conclusively rely on the opinions and advice of such persons.
(bc) Such agency may be changed by In the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided event that the Sellers’ Representative may not be removed unless becomes unable to perform his responsibilities hereunder or resigns from such position, another Person designated by a majority in interest of the Sellers (calculated on in writing to Buyer shall be deemed to be the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty for all purposes of this Agreement.
(30d) calendar days’ prior written notice Buyer has the right to Buyer, but in any event, not prior to rely conclusively on the appointment instructions and decisions of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled as to the settlement of any claims for indemnification by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be Buyer pursuant to ARTICLE VII, or any other actions required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred taken by the Sellers’ Representative shall be borne hereunder, and no party hereunder will have any Action against Buyer for any action taken by Buyer in reliance upon the Sellers based on instructions or decisions of the Allocation PercentagesSellers’ Representatives.
(ce) Sellers’ Representative Each of the Sellers shall have the right to recover fromseverally, at its sole discretionand not jointly, indemnify and hold harmless the Sellers’ Representative Expense Fundfrom and against any loss, prior to any distribution to the Sellerscost, Sellersdamage, claim or expense (including attorneys’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses fees) which may be incurred by Sellers’ Representative pursuant arising out of or relating to this Section 11.16 (the “Charges”). If performance of his duties and obligations as the Sellers’ Representative Expense Fund is insufficient to satisfy hereunder or under the ChargesTransaction Documents, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution except to the Sellers.
(d) A decisionextent as the consequence of fraud, act, consent gross negligence or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision willful misconduct on the part of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(ef) All notices The Sellers’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Sellers’ Representative shall not be liable to any Seller for any action taken or omitted by the Sellers’ Representative or any agent employed by the Sellers’ Representative hereunder or under any other communications required to document entered into in connection herewith, except that the Sellers’ Representative shall not be made or delivered relieved of any liability imposed by Buyer law for willful misconduct. The Sellers’ Representative shall not be liable to the Sellers shall be made to Sellers’ Representative for the benefit any apportionment or distribution of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be payments made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in good faith, and if any such capacity apportionment or distribution is subsequently determined to have been made in error the sole recourse of any way relating Seller to or arising out of its action or failures to take action pursuant towhom payment was due, or in connection withbut not made, this Agreement in such capacity; provided, that no Seller shall be liable for to recover from other Sellers any portion payment in excess of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of amount to which they are determined to have been entitled. The Sellers’ Representative.
(g) Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Sellers’ Representative nor any of its Non‑Recourse Parties agent employed by the Sellers’ Representative shall incur any liability to any Seller by virtue of the failure of the Sellers’ Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of the Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence fraud or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good bad faith.
Appears in 1 contract
Sellers’ Representative. (a) Each By executing this Agreement, each Seller hereby irrevocably authorizes and appoints Clean Streak Ventures Holdco, LLC Sellers’ Representative as its, his or her agent such Person’s representative and attorney-in-fact, as Sellers’ Representative for and fact to act on behalf of the Sellers relating such Person with respect to this Agreement and the TransactionsEscrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers pursuant to this Agreement or the Escrow Agreement, including, but not limited to, the exercise of the power to:
(i) to give and receive notices and communications,;
(ii) authorize delivery to receive service Buyer of process with respect cash from the Escrow Account in satisfaction of any amounts owed to any claim Buyer pursuant to (x) Section 2.03 or (y) Sellers’ indemnification obligations under this Agreement,;
(iii) to agree to, negotiate, execute enter into settlements and deliver agreementscompromises of, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,comply with orders or otherwise handle any other matters described in Section 2.03;
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,claims for indemnification made by Buyer;
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification under this Agreement;
(vi) execute and deliver all documents necessary or desirable to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders carry out the intent of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, andincluding the Escrow Agreement;
(vii) make all elections or decisions contemplated by this Agreement and the Escrow Agreement;
(viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as assist Sellers’ Representative may deem in complying with its duties and obligations; and
(ix) take all actions necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent good faith judgment of Sellers’ Representative and for the accomplishment of the foregoing. Buyer shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(b) Such agency may be changed by the Sellers from time entitled to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that deal exclusively with Sellers’ Representative may not on all matters relating to this Agreement and shall be removed unless a majority in interest entitled to rely conclusively (without further evidence of the Sellers (calculated any kind whatsoever) on the basis any document executed or purported to be executed on behalf of pro rata percentages of net proceeds of the Purchase Price received any Seller by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position , and on any other action taken or purported to be taken on behalf of Sellers’ Representative may be filled any Seller by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative, as being fully binding upon such Person. Notices or communications to or from Sellers’ Representative shall constitute notice to or from each of the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary Any decision or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred action by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the hereunder, including any agreement between Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution Parent relating to the Sellers.
(d) A decisiondefense, act, consent payment or instruction settlement of Sellers’ Representative, including an amendment, extension or waiver of this Agreementany claims for indemnification hereunder, shall constitute a decision or action of the 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 Person, or by operation of Law.
(b) The Sellers’ Representative may resign at any time, and Buyer may conclusively and absolutelybe 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 ownership interest immediately prior to Closing (the "Majority Holders"); provided, relyhowever, in no event shall Sellers’ Representative resign or be removed without any inquirythe 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 any the later of the date indicated in such decision, act, consent or instruction 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 10.01(a) above.
(c) The Sellers’ Representative shall not be liable to the Sellers for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the decisionadvice of counsel, act, consent or instruction accountants and other professionals and experts retained by Sellers’ Representative shall be conclusive evidence of the good faith). The Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it ’ shall severally and not jointly (in accordance with their pro rata ownership interest immediately prior to closing), indemnify and hold harmless Sellers’ Representative from and against, compensate it for, reimburse it for and pay any and all 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 and the Escrow Agreement (the "Representative Losses"), in each case as such Representative Loss is suffered or reliance on such decisionincurred; provided, actthat in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, consent fraud, intentional misconduct or instruction bad faith of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to , Sellers’ Representative for the benefit of shall reimburse the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit amount of such Seller(s) and any notices so made shall discharge in full all notice requirements of indemnified Representative Loss attributable to such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waivegross negligence, any and all liabilitiesfraud, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses intentional misconduct or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good bad faith.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller For purposes of this Agreement, the "Sellers' Representative" shall be WIND POINT INVESTORS V, L.P. By execution hereof, each of the Sellers does hereby appoints Clean Streak Ventures Holdcomake, LLC constitute and appoint the Sellers' Representative, as itshis, his her or its agent, to act in his, her agent or its name, place and stead, as such Seller's attorney-in-fact, as Sellers’ Representative (i) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement, the Equity Commitment Letter and the Escrow Agreement, (ii) to make all elections or decisions contemplated by this Agreement, the Equity Commitment Letter and the Escrow Agreement, including, the initiation or defense of claims for indemnification hereunder and thereunder, and (iii) to give and receive on behalf of the Sellers relating any and all notices from or to any Seller or Sellers hereunder or thereunder, (iv) subject to SECTION 2.3(C) and SECTION 2.3(D), to delegate to any Persons all or any of such Sellers' Representative's power and authority hereunder in the event of its incapacity to act; (v) to withhold a portion of the Closing Date Payment or any other payments made pursuant to this Agreement, the Equity Commitment Letter and the Escrow Agreement to pay any amounts that the Sellers' Representative reasonably expects to incur in connection with the Sellers' obligations under this Agreement and the Transactions:
(i) to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Escrow Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendmentsamounts required to pay the fees and expenses of professionals, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments incurred in connection with the Purchase Pricetransactions contemplated by this Agreement, to interpret all provisions of this Agreement, the Equity Commitment Letter and the Escrow Agreement and to resolve any disputes regarding the Purchase Price Adjustment or indemnification claims provided that (1) concurrently with the delivery of the Allocation Schedule to the Sellers under SECTION 2.1(E), the Sellers' Representative provides each of the Sellers with reasonable documentation of any expenses actually incurred by the Sellers' Representative, on behalf of the Sellers, at or prior to the Closing and a reasonably detailed explanation of the basis of its estimate of the amounts that it reasonably expects to incur, following the Closing, in connection with the Sellers' obligations under this Agreement, the Equity Commitment Letter and the Escrow Agreement, and (2) that the amount of the Seller Transaction Expenses withheld under SECTION 2.1(A) does not exceed, in the aggregate, $20,000,000 (including any amounts paid by the Buyer, on behalf of the Sellers, at the Closing pursuant to SECTION 2.1(D) AND (F)), (vi) generally to act for each Seller and on each such Seller's behalf in all matters contemplated by, or connected with, this Agreement, the Equity Commitment Letter and the Escrow Agreement, with the same force and effect as each such Seller might act in person, and (vii) to amend, modify or supplement any of the foregoing in each such Seller's name, place and stead, as if such Seller had personally done such act, provided, however, that the Sellers' Representative shall not have the right to execute and deliver any amendment to this Agreement, the Equity Commitment Letter or the Escrow Agreement or to take any other action, in the name, place and stead of any Seller, without the prior written consent of such Seller, if such amendment or action (A) would cause this Agreement and the purchase and sale of the Shares to fail to meet the conditions of, or impose an obligation on such Seller that is materially inconsistent with, the provisions of, Section 7 of the Stockholders' Agreement, (B) would amend or modify, in any respect, the obligations of such Seller to indemnify the Buyer or any other Person under this Agreement (1) on a basis inconsistent with the Allocation Schedule and the Pro Rata Percentage Interest of each of the Sellers, or (2) to (x) increase the Cap Amount, (y) exclude any additional matters from the Cap Amount with respect to the Sellers' obligations to indemnify the Buyer other than those set forth in SECTION 11.9(B) as of the date hereof, or (z) amend or modify SECTION 11.9 (F), (G) or (H) or (C) would impose any additional obligations on any Seller that is an Institutional Seller relating to the conduct of such Institutional Seller's business, or (D) would result in the preparation of the Allocation Schedule or in the determination of such Seller's Pro Rata Percentage Interest, in any manner inconsistent with Section 2.1. WIND POINT INVESTORS V, L.P. as Sellers' Representative hereby accepts such appointment. By execution hereof, the Sellers' Representative agrees to accept payment of the Closing Date Payment and any other payments made pursuant to the terms of this Agreement, and receive and disburse such payments the Equity Commitment Letter or the Escrow Agreement to the Sellers,
' Representative to be distributed to the Sellers, from time to time, on behalf of the Sellers and to disburse to the Sellers their proportionate share within two (v2) to agree to, negotiate, enter into settlements and compromises of, and comply with orders Business Days after receipt of courts and awards of arbitrators with respect to such claims,
payment thereof (vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection accordance with the Transactions. Such agency Allocation Schedule and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Sellertheir Pro Rata Percentage Interest).
(b) Such agency may The Buyer shall be changed entitled to rely exclusively on the full power and authority of the Sellers' Representative to act hereunder, the Equity Commitment Letter and the Escrow Agreement and under any Exhibit or Schedule hereto or thereto on behalf of the Sellers, and shall not be liable in any way whatsoever for any action the Buyer takes or omits to take in reliance upon such power and authority. The Sellers shall look solely to the Sellers' Representative for payment of their pro rata share of the Closing Date Payment and any other payments made pursuant to this Agreement, the Equity Commitment Letter or the Escrow Agreement by the Sellers from time Buyer to time upon not less than twenty the Sellers' Representative to be distributed to such Seller (20) calendar days prior written notice in accordance with the Allocation Schedule and each Seller's Pro Rata Percentage Interest), and they shall have no recourse against the Buyer or any of its Affiliates or agents for payment thereof; provided, however, that this sentence shall in no way limit the Sellers' or Sellers' Representative's power to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest enforce any of the Sellers Sellers' rights hereunder against the Buyer, except to the extent such power is vested exclusively with the Sellers' Representative under this Agreement, the Equity Commitment Letter or the Escrow Agreement.
(calculated on c) The death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any Seller shall not terminate the basis of pro rata percentages of net proceeds Sellers' Representative's appointment or the authority and agency of the Purchase Price received by each Seller) agree to such removal Sellers' Representative. The power-of-attorney granted in this Section 2.3 is coupled with an interest and to the identity of the substituted agent or agentsis irrevocable. Sellers’ Representative may resign If at any time upon not less than thirty (30) calendar days’ prior written notice to Buyerhereafter the Sellers' Representative shall resign or otherwise become incapable of acting as the Sellers' Representative, but in any event, not prior to the appointment of a substitute successor Sellers’ Representative. A vacancy in the position of Sellers’ ' Representative may shall be filled elected by the affirmative vote of a majority in majority-in-interest (based on each Seller's Pro Rata Percentage Interest) of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Every successor Sellers’ ' Representative appointed hereunder shall execute, acknowledge and deliver to the Buyer and each other Seller, an instrument in writing, reasonably satisfactory to the Sellers and the Buyer, accepting such appointment hereunder, and thereupon such successor Sellers' Representative, without any further act, shall become fully vested with all the rights, immunities and powers and shall be entitled subject to retain counsel all of the duties and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance obligations, of its obligations under this Agreement and all such costs and expenses incurred predecessor. For any action which must be approved by the vote of the Sellers’ Representative shall , such approval can be borne obtained at a meeting (held at any place in person or by telephone) or by written consent; provided that the execution of any document, instrument or letter of direction by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right for purposes of effecting any action will be deemed to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellersevidence of such approval.
(d) A decision, act, No Person acting as Sellers' Representative shall delegate any authority hereunder to another Person nor shall any replacement or substitute Sellers' Representative be appointed without the prior written consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and Buyer, which consent shall not be finalunreasonably withheld, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent conditioned or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representativedelayed.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers The Sellers' Representative shall be made to Sellers’ Representative for the benefit act, without compensation, on behalf of the Sellers Sellers, and any notices so made the Sellers' Representative shall discharge in full all notice requirements of Buyer not be liable to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller for any action the Sellers' Representative takes, or omits to Buyer shall be made by Sellers’ Representative for the benefit take, in good faith on behalf of such Seller(s) Seller. Further, each Seller, for itself and for his, her or its heirs, executors, legal representatives and assigns, hereby agrees to indemnify and hold harmless any notices so made shall discharge in full Sellers' Representative from and against any and all notice requirements claims that may arise against such Sellers' Representative by reason of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ ' Representative's actions or inactions hereunder in its capacity as Sellers' Representative (except in the case of fraud or intentional or willful misconduct on the part of such Sellers' Representative) or against such Sellers' Representative, in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion reason of such liabilitiesSeller's fraud, obligationsmisrepresentation, losses, damages, penalties, actions, judgments, suits, costs, expenses breach of representation or disbursements resulting solely from the gross negligence warranty or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Nonnon-Recourse Parties shall have no liability in respect fulfillment of any action, claim or proceeding brought against any obligation of such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding Seller contained in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faiththis Agreement.
Appears in 1 contract
Sellers’ Representative. (ai) Each The holders of the Company Capital Stock, the Senior Secured Lender and the Second Lien Lender (the “Seller hereby appoints Clean Streak Ventures HoldcoParties”) have irrevocably appointed the Sellers’ Representative as the agent, LLC as its, his or her agent proxy and attorney-in-factfact for such Seller Party for all purposes of this Agreement, including full power and authority on such party’s behalf (a) to consummate the transactions contemplated herein, (b) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (c) to execute and deliver any instruments as Sellers’ Representative for may be necessary in connection with the consummation of the transactions contemplated hereby, (e) to execute and deliver on behalf of such Seller Party any amendment or waiver relating to this Agreement or any Ancillary Agreement, (f) to take all other actions to be taken by or on behalf of the Sellers relating Seller Parties in connection herewith, (g) to negotiate, settle, compromise and otherwise handle all claims made by any indemnified party pursuant to Section 7A hereof and (h) to do each and every act and exercise any and all rights which a Seller Party is, or such Seller Parties collectively are, permitted or required to do or exercise under this Agreement and the Transactions:
(i) to give and receive notices and communications,or any Ancillary Agreement.
(ii) Buyer will be entitled to: (i) rely on the Sellers’ Representative or any successor thereto as having full power and authority to make all decisions and take all actions relating to the Seller Parties’ respective rights, obligations and remedies under this Agreement including to receive service of process with respect and make payments, to any claim under this Agreement,
(iii) receive and send notices, to agree to, negotiate, execute receive and deliver agreementsdocuments, consentsto exercise, waiversenforce or waive rights or conditions, documents to give releases and instruments, including amendments, extensions discharges and waivers to this Agreement,
defend against indemnification claims of Buyer Parties; and (ivii) to agree to, negotiate and authorize payments in connection deal only with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms Sellers’ Representative in respect of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute all matters arising under this Agreement, and
including to receive and make payments, to receive and send notices (vii) including notices of termination), to take receive and deliver documents, to exercise, enforce or refrain from taking all other actionwaive rights or conditions, and execute to give releases and deliver all additional agreements, documents, certificates and instruments, as discharges. In no event shall Buyer be held responsible or liable for the application or allocation of any monies paid to the Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative and Buyer shall be entitled to retain counsel and accountants and rely upon any notice provided to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred them by the Sellers’ Representative shall be borne or action taken by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to acting within the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out scope of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representativeauthority.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sources: Merger Agreement (Chase Corp)
Sellers’ Representative. (a) Each Seller hereby irrevocably constitutes and appoints Clean Streak Ventures HoldcoPlatte River Equity III, LLC L.P. as itssuch Seller’s true, his or her lawful and sole agent and attorney-in-fact, as Sellers’ Representative fact to act for and on behalf of such Seller in all matters relating to or arising out of this Agreement and the Sellers Ancillary Agreements, including (i) receiving all demands and notices on or with respect to such Seller under this Agreement and the Ancillary Agreements, (ii) taking any action or refraining from taking any action as Sellers’ Representative may deem appropriate in its discretion relating to the subject matter of this Agreement and the Ancillary Agreements, (iii) executing and delivering the Lockup and Registration Rights Agreement, Escrow Agreement and any other Ancillary Agreements, any amendment to this Agreement or such Ancillary Agreements, and all other instruments and documents of every kind incident to or otherwise relating to this Agreement and the Transactions:
Ancillary Agreements, (iiv) directing any payments due from Buyer authorizing the delivery to give Buyer of all or any portion of the funds from the Escrow Account, (v) taking any action on behalf of Sellers or any individual Seller that may be necessary or desirable, as determined by Sellers’ Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and receive notices and communications,
(ii) to receive service of process compromises with respect to indemnification claims of the Buyer Indemnified Parties, (vi) accepting notices on behalf of Sellers or any claim individual Seller in accordance with Section 13.7, (vii) granting any consent or approval on behalf of Sellers or any individual Seller under this Agreement or any Ancillary Agreement,
, (iiiviii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with authorizing distribution of the Additional Real Property Purchase Price, the Purchase Price Adjustment (ix) taking all actions on behalf of each Seller pursuant to this Agreement and any other payments pursuant Ancillary Agreement to the terms of this Agreement, which such Seller is a party and receive and disburse such payments to the Sellers,
(vx) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem actions necessary or appropriate in connection with the Transactionsjudgment of Sellers’ Representative for the accomplishment of the foregoing. Such agency Each Seller shall be fully bound by the acts, decisions and proxy are agreements of Sellers’ Representative taken and done pursuant to the authority herein granted, and such Seller hereby confirms all that Sellers’ Representative shall do or cause to be done by virtue of its appointment as Sellers’ Representative. The appointment of Sellers’ Representative pursuant to this Section 12.1 (x) is coupled with an interest, are therefore shall be irrevocable and (to the maximum extent permitted by Law) shall survive the dissolution, termination, death, incompetency or bankruptcy of any Seller and shall be binding on such Seller’s beneficiaries, heirs, representatives and successors and (y) may be exercised by Sellers’ Representative by signing separately as Sellers’ Representative for each Seller or, after listing all Sellers executing an instrument, by signing as Sellers’ Representative for all of them. Buyer and all other Persons may conclusively and absolutely rely, without the consent inquiry, upon any action of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Sellerin all matters referred to in this Agreement.
(b) Such agency may be changed by the Sellers from time Each Seller hereby agrees to time upon not less than twenty (20) calendar days prior written notice indemnify and to Buyer; provided that save and hold harmless Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received from any liability incurred by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at based upon or arising out of any time upon not less than thirty (30) calendar days’ prior written notice to Buyeract, but in any eventwhether of omission or commission, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by pursuant to the affirmative vote authority herein granted, other than acts, whether of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required omission or commission, of Sellers’ Representative. Notices Representative that constitute gross negligence or communications to or from willful misconduct in the exercise by Sellers’ Representative shall constitute notice to or from of the Sellersauthority granted by this Section 12.1. 32 Sellers’ Representative shall be entitled to retain counsel rely on the advice of counsel, accountants or other independent experts experienced in the matter at issue, and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as any error in judgment or other act or omission of Sellers’ Representative deems pursuant to such advice shall in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the no event subject Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentagesto liability to any Seller.
(c) Sellers’ Representative, or any successor hereafter appointed, may resign and shall be discharged of his, her or its duties hereunder upon the appointment of a successor Sellers’ Representative, as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of Sellers’ Representative, a successor may be named by Sellers representing a majority of the Closing Percentages. Each such successor Sellers’ Representative shall have all the right power, authority, rights and privileges hereby conferred upon the original Sellers’ Representative, and the term “Sellers’ Representative” as used herein shall be deemed to recover from, at include any such successor Sellers’ Representative.
(d) In connection with the performance of its sole discretion, the responsibilities as Sellers’ Representative Expense Fundunder this Agreement, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right at any time and from time to setoff time to select and engage, at the cost and expense of Sellers (based on each Seller’s Closing Percentage), such attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, as Sellers’ Representative determines is necessary or desirable.
(e) Unless otherwise agreed in writing by each Seller, Sellers’ Representative shall not be entitled to any compensation for the performance of services under this Agreement, but shall be entitled, in accordance with the terms of this Agreement, to payment or reimbursement of all expenses incurred as Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) . A decision, act, consent or instruction of the Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute Representative constitutes a decision of all the Sellers and shall be is final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability Liability to any Person, including any Seller, Person for any acts done or omissions by it Buyer in accordance with or reliance on such decision, act, consent or instruction of the Sellers’ Representative. Without limiting the generality of the foregoing, Buyer is entitled to rely, without inquiry, upon any document delivered by the Sellers’ Representative as being genuine and correct and having been duly signed or sent by the Sellers’ Representative.
(ef) All notices or other communications required Without limiting the generality of the foregoing, each Seller hereby agrees that Buyer shall have no responsibility to be made or delivered by Buyer see to the Sellers shall be made payment of any amounts due to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer a Seller under this Agreement to the Sellers with respect thereto. All notices or other communications required appropriate Seller, its sole responsibility being to be made or delivered make any such payments to such accounts as are specified in writing by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Hi-Crush Partners LP)
Sellers’ Representative. (a) Each Seller By their execution of this Agreement, the Sellers hereby appoints Clean Streak Ventures Holdcoirrevocably appoint the Sellers’ Representative as the representative, LLC as its, his or her agent and attorney-in-factfact and agent of Sellers in connection with the transactions contemplated by the Transaction Agreements and in any Action involving the Transaction Agreements. In connection therewith, as the Sellers’ Representative for 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 the Sellers relating to this Agreement and the Transactions:
Sellers: (i) act for Sellers with regard to all matters pertaining to the Transaction Agreements; (ii) act for Sellers in any Action with regard to all matters pertaining to the Transaction Agreements; (iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Sellers’ Representative 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 and communications,
required to be given or received by Sellers under the Transaction Agreements; (iivii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection and/or comply with the Purchase Price, determination of the Purchase Price Closing Date Statement and the Adjustment and any other payments Amount pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
Section 2.6; (vviii) to agree to, negotiate, enter into settlements and compromises of, and and/or comply with arbitration awards and court orders of courts and awards of arbitrators with respect to such claims,
claims made by the Acquiror under Article VII; and (viix) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders receive service of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate process in connection with any Actions under the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each SellerTransaction Agreements.
(b) Such agency may be changed by The Sellers’ Representative shall act for the Sellers from time on all of the matters set forth in the Transaction Agreements in the manner the Sellers’ Representative believes to time upon not less than twenty (20) calendar days prior written notice be in the best interest of the Sellers. The Sellers’ Representative is authorized to Buyer; provided that act on behalf of the Sellers notwithstanding any dispute or disagreement among the Sellers. In taking any action as the Sellers’ Representative, the Sellers’ Representative may not be removed unless a majority in interest of rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty reasonably believes to be authorized thereunto.
(30c) calendar days’ prior written notice to Buyer, but in any event, not prior to For all purposes of this Agreement: (i) the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative Acquiror shall be entitled to retain counsel rely conclusively, without any further inquiry or investigation, on the instructions and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as decisions of the Sellers’ Representative deems in its sole discretion as to the settlement of any disputes or claims under the Transaction Agreements, or any other actions required or permitted to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred taken by the Sellers’ Representative hereunder, and no party shall be borne have any cause of action against the Acquiror for any action taken by the Sellers based on Acquiror in reliance upon the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, instructions or decisions of the Sellers’ Representative Expense FundRepresentative; (ii) the provisions of this Section 2.7(c)(ii) are independent and severable, prior are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; and 13 (iii) this Section 2.7(c)(iii) shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, assignees and successors of each Seller, and any references in this Agreement to any distribution a Seller shall mean and include the successors to the Sellersrights of each applicable Seller hereunder, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative whether pursuant to this Section 11.16 (testamentary disposition, the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity Laws of descent and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellersor otherwise.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision Each of the Sellers and shall be final, binding and conclusive upon agrees that the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from damages while acting in good faith and in the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any exercise of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance reasonable judgment and arising out of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, connection with the acceptance or otherwise, if any such Person took or omitted taking any action in good faith.administration of its duties under this Agreement. Article III
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Sellers’ Representative. (a) Sellers’ Representative is designated by each Seller Party to serve as the representative of the Seller Parties with respect to the matters expressly set forth in Section 8.2.6(b) and 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 the Shares as of the date hereof on a fully diluted basis will designate a single substitute agent to serve as the successor Sellers’ Representative. The appointment of a successor will be effective on the date of Sellers’ Representative’s resignation or incapacity or, if later, the date on which the successor is appointed.
(b) Each Seller hereby Party, by the execution of this Agreement, irrevocably appoints Clean Streak Ventures HoldcoSellers’ Representative as the agent, LLC as its, his or her agent proxy and attorney-in-factfact for that Seller Party for all purposes of this Agreement, as including the full power and authority on that Seller Party’s behalf: (i) to consummate the transactions contemplated herein and any post-Closing matters, including making decisions and taking any action with respect to the matters set forth in Section 2.4 (Post-Closing Adjustment); (ii) to pay that Seller Party’s expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date of this Agreement); (iii) to disburse any funds received hereunder to that Seller Party and each other Seller Party and to hold and disburse funds from the Sellers’ Representative Holdback Amount for the payment of post-Closing fees, expenses and other obligations of the Seller Parties or Sellers’ Representative in connection with the transactions contemplated by this Agreement (with any excess from the Sellers’ Representative Holdback Amount after payment of such post-Closing fees, expenses and other obligations to be disbursed to the Seller); (iv) to endorse and deliver any certificates or instruments representing the LLC Interests and execute any further instruments of assignment as Buyer will reasonably request; (v) to make, execute and deliver on behalf of the Sellers relating to that Seller Party any amendment or waiver of, or in connection with, this Agreement and the Transactions:
other agreements or documents contemplated hereby as Sellers’ Representative, in Sellers’ Representative’s sole discretion, may deem necessary or desirable; (ivi) to give and receive notices and communications,
take all other actions to be taken by or on behalf of that Seller Party in connection herewith; (iivii) to receive service of process with respect do each and every act and exercise any and all rights that the Seller Parties collectively are permitted or required to any claim do or exercise under this Agreement,
; (iiiviii) to agree toprepare and distribute to each Seller Party any documentation necessary or desirable for the filing of income Tax Returns; and (ix) to make, negotiateexecute, execute acknowledge and deliver this Agreement and all other agreements, consentsguarantees, waiversorders, documents receipts, endorsements, notices, requests, instructions, certificates, letters and instrumentsother writings, including amendmentsand, extensions in general, to do any and waivers all things and to this Agreement,
(iv) to agree totake any and all action that Sellers’ Representative, negotiate in Sellers’ Representative’s sole and authorize payments absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Purchase Pricetransactions contemplated by this Agreement and all other agreements and documents referred to herein or therein or executed in connection herewith and therewith, including holding and disbursing the Purchase Price Adjustment and any other payments pursuant to Sellers’ Representative Holdback Amount in accordance with the terms of this Agreement, retaining counsel, accountants and receive other agents, representatives and disburse such payments to the Sellers,
(v) to agree toexperts, negotiateincurring fees and expenses, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, 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’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other actionthe Company and their respective representatives regarding those claims, and execute and deliver all additional agreements, documents, certificates and instruments, as it being understood that Sellers’ Representative may deem necessary 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 appropriate actions arising out of any alleged breach of any representation or warranty in connection with Article 3 or any covenant or agreement contained herein by a particular Seller Party or group of the TransactionsSeller Parties without the express authorization of that Seller Party or group of the Seller Parties, and Buyer acknowledges this limitation. Such Each Seller Party acknowledges that this agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
any Seller Party. All decisions and actions by Sellers’ Representative (bto the extent authorized by this Agreement) Such agency may be changed by are binding upon all of the Sellers from time Seller Parties, and no Seller Party has the right to time upon not less than twenty (20) calendar days prior written notice to Buyerobject, dissent, protest or otherwise contest any decision or action; provided except that Sellers’ Representative may will not take any action where (x) any single Seller Party would be removed 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 a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and disproportionately affected Seller Party consents to the identity of action. Notwithstanding the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyerforegoing, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from consult with the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems ESOP Trustee in its sole discretion to be necessary or appropriate in connection with its performance advance of its obligations under this Agreement and all such costs and expenses incurred by any decision regarding a resolution of differences that may adversely affect the Sellers’ Representative shall be borne by consideration paid for the Sellers based on the Allocation PercentagesLLC Interests.
(c) Buyer and the Acquired Companies may rely on any action taken or omission to act by Sellers’ Representative, on behalf of a 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 its capacity as Sellers’ Representative, has no liability to Buyer or the Company for any Authorized Action, except to the extent that the Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or willful misconduct. Each Seller Party severally, for itself only and not jointly and severally, will indemnify and hold harmless Sellers’ Representative shall have the right to recover fromagainst all expenses (including reasonable attorneys’ fees), at its sole discretionjudgments, the fines and amounts paid in settlement actually and reasonably incurred by Sellers’ Representative Expense Fund, prior in connection with any Proceeding to any distribution which Sellers’ Representative is made a party by reason of the fact he is or was acting as Sellers’ Representative pursuant to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity terms of this Agreement and any costs and expenses incurred by Sellers’ Representative pursuant in connection with the performance of Sellers’ Representative’s duties hereunder; provided, that the ESOP Trust’s liability for such expenses shall be limited to this Section 11.16 (the “Charges”). If and only payable from the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the SellersHoldback Amount.
(d) A decisionSellers’ Representative is not entitled to any fee, act, consent commission or instruction other compensation for the performance of Sellers’ Representative’s services, including an amendmentbut is entitled to the payment by the Seller Parties of all expenses incurred as Sellers’ Representative; provided, extension or waiver that the ESOP Trust’s liability for its pro rata portion of such expenses shall be limited to and only payable from the Sellers’ Representative Holdback Amount.
(e) Sellers’ Representative does not have by reason of this AgreementAgreement a fiduciary relationship in respect of any Seller Party, shall constitute except in respect of amounts received hereunder on behalf of a decision Seller Party. Sellers’ Representative is not liable to any Seller Party for any action taken or omitted by Sellers’ Representative or any agent employed by Sellers’ Representative hereunder or under any other document entered into in connection herewith, except that Sellers’ Representative is not relieved of any liability imposed by Law for fraud or willful misconduct. Sellers’ Representative is not liable to the Seller Parties for any apportionment or distribution of payments made by Sellers’ Representative in good faith, and if any apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Seller Party to whom payment was due, but not made, is to recover from the other Seller Parties any payment in excess of the Sellers and shall be final, binding and conclusive upon 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 Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent failure or instruction refusal of Sellers’ Representative as being for any reason to consummate the decisiontransactions contemplated hereby or relating to the performance of Sellers’ Representative’s other duties hereunder, act, consent except for actions or instruction of the Sellersomissions constituting fraud or bad faith. Buyer and each Acquired Company is hereby relieved from liability from any liability to any Person, including any Seller, Seller Party for any acts done by it any of them in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(ef) All notices or other communications required to be made or delivered by Buyer to of the Sellers shall be made indemnities, immunities and powers granted to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, under this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from survive the gross negligence or willful misconduct of Sellers’ RepresentativeClosing Date.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
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Sellers’ Representative. (a) Each By approving this Agreement and the transactions contemplated hereby, each Seller Party hereby irrevocably authorizes and appoints Clean Streak Ventures Holdco, LLC Sellers’ Representative as its, his or her agent such Seller Party's representative and attorney-in-fact, as Sellers’ Representative for and fact to act on behalf of the Sellers relating such Seller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the TransactionsAncillary Documents, including, but not limited to, the exercise of the power to:
(i) to give and receive notices and communications,;
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute enter into settlements and deliver agreementscompromises of, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,comply with orders or otherwise handle any other matters described in Section 2.04;
(iviii) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,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) to assert, negotiate, enter into settlements make all elections or decisions contemplated by this Agreement and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, andAncillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as assist Sellers’ Representative may deem 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 connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent good faith judgment of Sellers’ Representative and shall survive for the death, incapacity, bankruptcy, dissolution or liquidation accomplishment of each Sellerthe foregoing.
(b) Such agency may Buyer and Parent shall be changed by the Sellers from time entitled to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that deal exclusively with Sellers’ Representative may not on all matters relating to this Agreement (including Article VIII) and shall be removed unless a majority in interest entitled to rely conclusively (without further evidence of the Sellers (calculated any kind whatsoever) on the basis any document executed or purported to be executed on behalf of pro rata percentages of net proceeds of the Purchase Price received any Seller Party by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position , and on any other action taken or purported to be taken on behalf of Sellers’ Representative may be filled any Seller Party by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative, 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 SellersSeller Parties. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary Any decision or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred action by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the hereunder, including any agreement between Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution Buyer or Parent relating to the Sellers.
(d) A decisiondefense, act, consent payment or instruction settlement of Sellers’ Representative, including an amendment, extension or waiver of this Agreementany claims for indemnification hereunder, shall constitute a decision or action of the Sellers 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 Buyer may conclusively and absolutelybe removed for any reason or no reason by the vote or written consent of a majority in interest of the Seller Parties; provided, relyhowever, in no event shall Sellers’ Representative resign or be removed without any inquiry, the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon any such decision, act, consent the resignation or instruction removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative as being shall be appointed by the decisionvote 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, act, such appointment to be effective upon the later of the date indicated in such consent or instruction 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 Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of prior Sellers’ Representative.
(ed) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer not be liable to the Sellers with respect thereto. All notices 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 communications required to be made or delivered by any Seller to Buyer shall be made professionals and experts retained by Sellers’ Representative for the benefit shall be conclusive evidence of such Seller(s) good faith). The Seller Parties shall severally and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally not jointly, indemnify and hold harmless Sellers’ Representative (from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its capacity activities as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (under this Agreement, in its capacity each case as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses such losses are suffered or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacityincurred; provided, that no Seller shall be liable for in the event it is finally adjudicated that any such loss or any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from thereof was primarily caused by the gross negligence negligence, fraud, intentional misconduct or willful misconduct bad faith of Sellers’ Representative.
(g) Neither , Sellers’ Representative nor any shall reimburse Seller Parties the amount of its Non‑Recourse Parties shall incur any liability such indemnified losses attributable to any Seller relating to the performance of Sellers’ Representative’s duties hereundersuch gross negligence, except for actions fraud, intentional misconduct or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good bad faith.
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Sellers’ Representative. (a) Each Seller The Sellers Representative is hereby appoints Clean Streak Ventures Holdco, LLC appointed by each Member (and its successors and assigns) as its, his or her agent and attorney-in-factfact with full power of substitution for such party, as Sellers’ Representative for and on behalf of such party, as the Sellers relating to this Agreement and the Transactions:
party authorized to: (i) negotiate, defend, dispute, contest, assert, compromise and settle all post-Closing claims and matters arising under this Agreement, including any dispute or final resolution of Final Closing Items under Section 2.4 and post-Closing claims and matters relating to give and receive notices and communications,
(ii) to receive service of process any claim for indemnification under ARTICLE IX; provided, however, that with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments or demand for indemnification pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
ARTICLE IX for which FE-STACK may have liability (v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators except with respect to such claims,
(viany Seller Tax Contest) to a Buyer Indemnified Party, if such claim or demand relates to an indemnity obligation for which FE-STACK would be solely liable pursuant to Section 9.2, FE-STACK, not the Sellers Representative, shall have full authority to negotiate, defend, dispute, contest, assert, negotiatecompromise and settle such claims and demands, (ii) agree to, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect toto such claims and matters, and to take all actions necessary or appropriate in the reasonable judgment of the Sellers Representative for the accomplishment of the foregoing, (iii) initiate or refrain from initiating or dispute or refrain from disputing any claim by Buyer for indemnification or any of Buyer’s Affiliates or any dispute other claim under this Agreement, and
(viiiv) take any other action expressly delegated to take the Sellers Representative under the other terms of this Agreement and (v) give and receive notices and communications to or refrain from taking all other actionSeller relating to the Transaction Documents and the transactions contemplated by the Transaction Documents, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ in each case without having to seek or obtain the consent of the Members. Sellers Representative may deem necessary or appropriate shall keep each of the Members reasonably informed in connection with the Transactions. Such agency and proxy are coupled with an interestany action or decision delegated to Sellers Representative by this Agreement, are therefore irrevocable without the consent of Sellers’ Representative including this Section 10.13, and shall survive the death, incapacity, bankruptcy, dissolution promptly provide each Member with all documentation or liquidation of each Sellercommunication involved therewith.
(b) Such agency may The Sellers Representative shall not be changed liable for any act done or omitted hereunder as the Sellers Representative while acting in good faith and in the exercise of reasonable judgment. The Members shall indemnify the Sellers Representative and hold the Sellers Representative harmless against any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Sellers Representative and arising out of or in connection with the acceptance or administration of the Sellers Representative’s duties under this Agreement, including the reasonable fees and expenses of any legal counsel retained by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Representative. This right of indemnification shall survive the termination of this Agreement. Any Person, including Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of , dealing with the Sellers (calculated Representative is entitled to rely on the basis actions taken by, and consents and approvals given by, the Sellers Representative as the actions of pro rata percentages of net proceeds of each Member without the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agentsneed for further investigation. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to A Person, including Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by rely on the Sellers based Representative’s actions, consents and approvals notwithstanding any knowledge of the relying Person. No Person shall have any liability for relying on the Allocation PercentagesSellers Representative in the foregoing manner.
(c) Sellers’ If the Sellers Representative becomes unable or unwilling to serve as an agent, such other Person or Persons as may be designated by the Members shall have succeed such Person as the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Sellers Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Sellers Representative Expense Fund is insufficient should at any time become unwilling to satisfy the Charges, then all Charges shall be borne by serve as the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendmenthe promptly shall so notify Seller in writing, extension and shall bear no liability of any kind or waiver nature whatsoever as a consequence of this Agreementsuch determination. In addition, shall constitute a decision at any time as determined in the sole discretion of the Sellers and shall be finalRepresentative, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures decline to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against make any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tortdetermination, or whether at law otherwise bear any expense without having first obtained the approval or in equity, consent of Seller or otherwise, if any such Person took or omitted taking any action in good faithMember.
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
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 Clean Streak Ventures Holdco, LLC as its, his or her agent and attorney-in-fact, as designate BC Sellers’ Representative for and on behalf LLC as their representative (the “Sellers’ Representative”).
(b) Sellers, by approving this Agreement or by executing one of the Sellers Seller Deliveries, shall authorize the Sellers’ Representative (i) to make all decisions relating to the determination of the Merger Consideration and the Actual Closing Date Working Capital Amount, (ii) to make all decisions relating to the distribution of any amounts payable or distributable to Sellers hereunder, in accordance with this Agreement and the Escrow Agreement, (iii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company to consummate the Contemplated Transactions:
, or the defense and/or settlement of any Proceedings with respect to which any Buyer Indemnified Party may be entitled to be indemnified pursuant to Section 9 hereof, (iiv) to give and receive all notices and communications,
required to be given under this Agreement or the Escrow Agreement, (iiv) to receive service take any and all additional action as is contemplated to be taken by or on behalf of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to Sellers by the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to asserttake all other actions to be taken by or on behalf of Sellers in connection herewith, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other actionwithhold funds to pay Seller-related expenses and obligations, and execute and deliver all (viii) to withhold additional agreements, documents, certificates and instruments, funds as determined by the Sellers’ Representative may deem necessary in its discretion to pay future or appropriate contingent Seller expenses and obligations and (ix) to seek recourse against any Seller for the benefit of the other Sellers in connection with the Transactions. Such agency event of a disbursement to the Buyer Indemnified Parties due to any breach of the representations and proxy are coupled with an interestwarranties made by such Seller in a Seller Delivery.
(c) In the event that the Sellers’ Representative is dissolved, are therefore irrevocable becomes unable to perform its responsibilities hereunder or resigns from such position, Sellers holding, prior to the Closing, a majority of the voting Common Stock and Preferred Stock as set forth in Section 2.4(a) of the Company Disclosure Schedule shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers’ Representative for all purposes of this Agreement.
(d) All decisions and actions by the Sellers’ Representative, including, without limitation, any agreement between the consent of Sellers’ Representative and the Surviving Corporation relating to the determination of the Actual Closing Date Working Capital Amount or the defense or settlement of any Proceedings with respect to which any Buyer Indemnified Party may be entitled to be indemnified pursuant to Section 9 hereof, shall survive be binding upon all of the deathSellers, incapacityand no Seller shall have the right to object, bankruptcydissent, dissolution protest or liquidation of each Sellerotherwise contest the same.
(be) Such agency may By approving this Agreement, or by executing a Letter of Transmittal, an Option Cancellation and Payment Acknowledgement or a Warrant Cancellation and Payment Acknowledgement, Sellers agree that:
(i) Parent, Buyer, the Surviving Corporation and each other Buyer Indemnified Party shall be changed by able to rely conclusively on the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that instructions and decisions of the Sellers’ Representative may not be removed unless a majority in interest as to the determination of the Sellers (calculated on Actual Closing Date Working Capital Amount or the basis settlement of pro rata percentages of net proceeds 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 Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at hereunder, and no Seller or party hereunder shall have any time upon not less than thirty (30) calendar days’ prior written notice to cause of action against Parent, Buyer, but the Surviving Corporation or any other Buyer Indemnified Party for any action taken by any such Person in any event, not prior to reliance upon the appointment instructions or decisions of a substitute the Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest ;
(ii) all actions, decisions and instructions of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel conclusive and accountants binding upon all of the Sellers and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as no Seller shall have any cause of action against the Sellers’ Representative deems in its sole discretion to 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 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be necessary enforceable notwithstanding any rights or appropriate remedies that any Seller may have in connection with its performance the Contemplated Transactions;
(iv) the provisions of its obligations under 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 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 and to be used by the Sellers’ Representative for the payment of all such costs and expenses incurred by the Sellers’ Representative shall be borne in connection with the exercise by it of the authority granted to it herein (including reasonable attorney fees and expenses and the fees and expenses of any accountants or other professional advisors retained by the Sellers based on Sellers’ Representative). From time to time after the Allocation Percentages.
(c) Effective Time, Sellers’ Representative shall have may distribute to Sellers, pro rata in accordance with their respective ownership of all shares of Preferred Stock that are not converted at the right Effective Time, plus the Fully Diluted Shares Outstanding immediately prior to recover fromthe Effective Time, at its sole discretion, such portion of such sum as the Sellers’ Representative Expense Fundreasonably 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, prior to any 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 SellersEscrow 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, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in plus the Fully Diluted Shares Outstanding; provided, however, that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If if the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any incurs costs and expenses incurred disproportionately due to a Seller’s breach of representations and warranties made by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision such Seller in one of the Sellers and Seller Deliveries, such breaching Seller shall be final, binding and conclusive upon reimburse the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of additional costs and expenses disproportionately incurred; and
(vi) they will indemnify and hold harmless the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) Representative, severally and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless not jointly, from and waive, against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind damages which may at any time be imposed uponon, incurred by or asserted against the Sellers’ Representative in such capacity in any way relating to or arising out of its this Agreement, or any related agreement or instrument or any action taken or failures omitted to take action pursuant to, be taken by the Sellers’ Representative under or in connection withherewith, this Agreement in unless such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting damages resulted solely from the gross negligence or willful misconduct bad faith of the Sellers’ Representative.
(gf) Neither All fees and expenses incurred by the Sellers’ Representative nor in excess of $500,000 shall be paid from any of its Non‑Recourse Parties shall incur any liability funds otherwise due to any Seller relating Sellers (including from the Escrowed Amount, if any, after such amount is released to the performance of Sellers’ Representative’s duties hereunder) in proportion to their ownership of all shares of Preferred Stock that are not converted at the Effective Time, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability plus the Fully Diluted Shares Outstanding as set forth in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless Section 2.4(a) of the legal theory under which such liability or obligation may be sought 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 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 be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faiththe Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Sellers’ Representative. (a) Each Seller Sellers hereby appoints Clean Streak Ventures Holdcoirrevocably make, LLC constitute and appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the initial “Sellers Representative”) as its, his or her agent their true and lawful attorney-in-factfact with full power of substitution to do any and all things and execute any and all documents which may be necessary, as Sellers’ Representative for and on behalf convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, including: (i) receipt of payments hereunder and the disbursement thereof to Sellers relating and others; (ii) receipt and forwarding of notices and communications pursuant to this Agreement and the Transactions:
(i) to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
other Transaction Documents; (iii) to agree to, negotiate, execute administration of this Agreement and deliver agreements, consents, waivers, documents and instrumentsthe other Transaction Documents, including amendments, extensions and waivers to this Agreement,
the resolution of any dispute or claim; (iv) making any determinations to agree to, negotiate and authorize payments in connection with settle any dispute as to the calculation of the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
; (v) resolution, settlement or compromise of any claim for indemnification asserted against a Seller pursuant to agree to, negotiate, enter into settlements Article 5; (v) agreeing to waivers of conditions and compromises of, obligations under this Agreement and comply with orders of courts and awards of arbitrators with respect to such claims,
the other Transaction Documents; (vi) to assertasserting, negotiateon behalf of Sellers, enter into settlements claims for indemnification under Article 5 and compromises ofresolving, settling or compromising all such claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other actionexecuting, and execute and deliver all additional agreementsperforming the obligations under, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each SellerEscrow Agreement.
(b) Such agency may be changed by In the event that Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest Representative, with the advice of counsel, is of the opinion that he or she requires further authorization or advice from Sellers (calculated on the basis any matters concerning this Agreement, Sellers Representative is entitled to seek such further authorization from Sellers prior to acting on their behalf. In such event and on any other matter requiring or permitting Sellers to vote in this Section 4.4, each Seller will have a number of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and votes equal to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not Shares owned by that Seller immediately prior to Closing and the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote authorization of a majority in interest of the such Shares will be binding on all Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of and will constitute authorization by Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Buyer will be fully protected in dealing with Sellers Representative shall have the right with respect to recover from, at its sole discretionthis Agreement, the other Transaction Documents and the transactions contemplated by this Agreement and may rely upon the authority of Sellers Representative to act as the agent of Sellers for all purposes under this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby. Any payment by Buyer to Sellers Representative under this Agreement or any other Transaction Document will be considered a payment by Buyer to Sellers’ . The appointment of Sellers Representative Expense Fund, prior is coupled with an interest and will be irrevocable by any Seller in any manner or for any reason. This power of attorney will not be affected by the disability or incapacity of the principal pursuant to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellersapplicable Legal Requirement.
(d) A decision, act, consent or instruction of Sellers’ If at any time there is more than one Sellers Representative, including an amendment, extension any act of Sellers Representative will require the act of a majority of Sellers Representatives. Any Sellers Representative may resign from his or waiver of this Agreement, shall constitute her capacity as a decision of Sellers Representative at any time by written notice delivered to the other Sellers and shall be finalto Buyer. If there is a vacancy at any time in the position of Sellers Representative for any reason, binding the remaining Sellers Representative may act with full power and conclusive upon authority until such time as the Sellersremaining Sellers Representative will select a successor to fill such vacancy. If at any time there is no person acting as a Sellers Representative for any reason, Sellers will promptly designate a new Sellers Representative and promptly notify Buyer in writing of such determination. Following the time that Buyer is notified that there is no Sellers Representative and until such time as a new Sellers Representative is designated as provided herein and Buyer may conclusively and absolutelyis so notified in writing, relySellers will collectively act as Sellers Representative, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being with decisions made in the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it manner specified in accordance with or reliance on such decision, act, consent or instruction of Sellers’ RepresentativeSection 4.4(b).
(e) All notices or other communications required to be made or delivered by Buyer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the initial sole Sellers Representative, acknowledges that he has carefully read and understands this Agreement, hereby accepts such appointment and designation, and represents that he will act in his capacity as a Sellers Representative in strict compliance with and conformance to the Sellers shall be made to Sellers’ Representative for provisions of this Agreement and the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect theretoTransaction Documents.
(f) The Sellers hereby agree Representative will not be liable to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, Sellers for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements error of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant tojudgment, or any act done or step taken or omitted by him in good faith or for any mistake in fact or Legal Requirement, or for anything that he or she may do or refrain from doing in connection with, with this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunderother Transaction Documents, except for actions his or omissions constituting gross negligence her own bad faith or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.willful
Appears in 1 contract
Sources: Stock Purchase Agreement (Noble International, Ltd.)
Sellers’ Representative. (a) Each By approving this Agreement and the transactions contemplated hereby, each Seller Party hereby irrevocably authorizes and appoints Clean Streak Ventures Holdco, LLC Sellers’ Representative as its, his or her agent such Seller Party’s representative and attorney-in-fact, as Sellers’ Representative for and fact to act on behalf of the Sellers relating such Seller Party with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Sellers’ Representative pursuant to this Agreement or the TransactionsAncillary Documents, including, but not limited to, the exercise of the power to:
(i) to give and receive notices and communications,;
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute enter into settlements and deliver agreementscompromises of, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,comply with orders or otherwise handle any other matters described in Section 2.04;
(iviii) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,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) to assert, negotiate, enter into settlements make all elections or decisions contemplated by this Agreement and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, andAncillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as assist Sellers’ Representative may deem 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 connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent good faith judgment of Sellers’ Representative and shall survive for the death, incapacity, bankruptcy, dissolution or liquidation accomplishment of each Sellerthe foregoing.
(b) Such agency may Buyer and Parent shall be changed by the Sellers from time entitled to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that deal exclusively with Sellers’ Representative may not on all matters relating to this Agreement (including Article VIII) and shall be removed unless a majority in interest entitled to rely conclusively (without further evidence of the Sellers (calculated any kind whatsoever) on the basis any document executed or purported to be executed on behalf of pro rata percentages of net proceeds of the Purchase Price received any Seller Party by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position , and on any other action taken or purported to be taken on behalf of Sellers’ Representative may be filled any Seller Party by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative, 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 SellersSeller Parties. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary Any decision or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred action by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the hereunder, including any agreement between Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution Buyer or Parent relating to the Sellers.
(d) A decisiondefense, act, consent payment or instruction settlement of Sellers’ Representative, including an amendment, extension or waiver of this Agreementany claims for indemnification hereunder, shall constitute a decision or action of the Sellers 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 Buyer may conclusively and absolutelybe removed for any reason or no reason by the vote or written consent of a majority in interest of the Seller Parties; provided, relyhowever, in no event shall Sellers’ Representative resign or be removed without any inquiry, the Sellers having first appointed a new Sellers’ Representative who shall assume such duties immediately upon any such decision, act, consent the resignation or instruction removal of Sellers’ Representative. In the event of the death, incapacity, resignation or removal of Sellers’ Representative, a new Sellers’ Representative as being shall be appointed by the decisionvote 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, act, such appointment to be effective upon the later of the date indicated in such consent or instruction 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 Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of prior Sellers’ Representative.
(ed) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer not be liable to the Sellers with respect thereto. All notices 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 communications required to be made or delivered by any Seller to Buyer shall be made professionals and experts retained by Sellers’ Representative for the benefit shall be conclusive evidence of such Seller(s) good faith). The Seller Parties shall severally and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally not jointly, indemnify and hold harmless Sellers’ Representative (from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its capacity activities as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (under this Agreement, in its capacity each case as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses such losses are suffered or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacityincurred; provided, that no Seller shall be liable for in the event it is finally adjudicated that any such loss or any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from thereof was primarily caused by the gross negligence negligence, fraud, intentional misconduct or willful misconduct bad faith of Sellers’ Representative.
(g) Neither , Sellers’ Representative nor any shall reimburse Seller Parties the amount of its Non‑Recourse Parties shall incur any liability such indemnified losses attributable to any Seller relating to the performance of Sellers’ Representative’s duties hereundersuch gross negligence, except for actions fraud, intentional misconduct or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good bad faith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Sellers’ Representative. (a) Each Seller hereby appoints Clean Streak Ventures Holdco, LLC as its, his or her agent and attorney-in-fact, as Sellers’ Representative for and on behalf Upon the signing of the Sellers relating to this Agreement and the Transactions:
(i) to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
, the Stockholders hereby appoint ▇▇▇▇ as the representative for all Stockholders (iiiincluding, without limitation, all Principal Stockholders) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Pricetransactions contemplated by this Agreement (in such capacity, the "Sellers' Representative"). The Sellers' Representative will represent the Stockholders under this Agreement (including, without limitation, with respect to Tax matters in Section 4.17, the closing conditions in Section 5.2, the Contingent Payments, the Closing Balance Sheet, any Purchase Price Adjustment or Purchase Price repayments and any other payments Claims for indemnification pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(vArticle VI) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute until all Stockholders' duties under this Agreement, and
(vii) Agreement are discharged. The Sellers' Representative will have full and irrevocable power and authority to take or refrain from taking all other action, act for and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position name of Sellers’ Representative may be filled by and as agent for the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations Stockholders under this Agreement and all such costs and expenses incurred Stockholders will be bound by the Sellers’ ' Representative's agreements and decisions with respect hereto. The Sellers' Representative shall be borne will provide Buyer with a true, correct and complete list of the Stockholders and their respective addresses and account information (the "Stockholders' List") and will update the Stockholders' List in writing as is necessary to keep the Stockholders' List current, complete and accurate. Buyers may rely on any document (including, without limitation, the Stockholders' List) believed by them to have been signed or presented by the Sellers based Sellers' Representative. Buyers will have no obligation to investigate any fact or matter set forth in any such document and all Stockholders will be bound by any such document delivered by the Sellers' Representative to Buyers. In the event ▇▇▇▇ resigns, dies or becomes incapacitated, the holders of a majority of the issued and outstanding Shares immediately prior to the Closing will appoint a successor Sellers' Representative, notwithstanding the absence of a quorum. The Stockholders will give Buyers written notice of any change in the Sellers' Representative and until such written notice is received by Buyers, such change in Sellers' Representative will not be effective or binding on Buyers. The Sellers' Representative will not be liable to any Stockholder for any act done or omitted hereunder as Sellers' Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders will severally indemnify the Sellers' Representative and hold the Sellers' Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction part of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ ' Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion with the acceptance or administration of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ ' Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s 's duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
Appears in 1 contract
Sellers’ Representative. (a) Each At the Closing, each Seller hereby appoints Clean Streak Ventures Holdcoagrees that Vista Equity Partners Management, LLC shall be constituted and appointed as itsthe Sellers’ Representative. Pursuant to the terms of the applicable Holdings Equity Agreement, his or her agent each Consideration Recipient will constitute and attorney-in-factappoint Vista Equity Partners Management, LLC, as the Sellers’ Representative 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 Consideration Recipients for all purposes of this Agreement and the Purchase Price Adjustment Escrow Agreement, with full power and authority on such Consideration Recipients’ behalf (i) to consummate the transactions contemplated herein, (ii) to pay such Consideration Recipients’ expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to pay, receive, give receipt and disburse any funds received hereunder on behalf of or to such Consideration Recipients and to hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Shares or Holdings Shares and execution of such further instruments as Purchaser shall reasonably request, (v) to execute and deliver on behalf of such Consideration Recipients all documents contemplated herein and any amendment or waiver hereto, (vi) to prepare, deliver and receive any notices on behalf of the Consideration Recipients contemplated by this Agreement, (vii) to take all other actions to be taken by or on behalf of the Consideration Recipients in connection herewith, (viii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding the Working Capital Amount and any adjustment pursuant to Section 1.5 and any Indemnification Claim made pursuant to Section 9.3(a)(ii), (ix) to waive any condition to the obligation of Sellers relating to this Agreement and consummate the Transactions:
transactions contemplated herein, (ix) to give and receive notices on behalf of the Consideration Recipients and communications,
(iixi) to receive service of process with respect do each and every act and exercise any and all rights which such Consideration Recipient is, or the Consideration Recipients collectively are, permitted or required to any claim do or exercise under this Agreement,
(iii) . The Consideration Recipients, by approving the principal terms of the Share Purchase, executing this Agreement or the Holdings Equity Agreements and/or accepting the consideration payable to agree tothem hereunder or thereunder, negotiate, execute irrevocably grant unto said attorney-in-fact and deliver agreements, consents, waivers, documents agent full power and instruments, including amendments, extensions authority to do and waivers perform each and every act and thing necessary or desirable to this Agreement,
(iv) to agree to, negotiate and authorize payments be done in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of transactions contemplated by this Agreement, as fully to all intents and receive and disburse purposes as the Consideration Recipients might or could do in person. Each Consideration Recipient agrees that such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. 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 incapacity or liquidation of each Seller.
(b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 (the “Charges”). If the Sellers’ Representative Expense Fund is insufficient to satisfy the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Sellers’ Representative shall have the right to setoff Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to the performance of Sellers’ Representative’s duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative and its Non-Recourse Parties shall have no liability in respect bankruptcy of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faithConsideration Recipient.
Appears in 1 contract
Sellers’ Representative. (a) Each Seller Sellers hereby appoints Clean Streak Ventures Holdco, LLC as its, his or her agent and attorney-in-fact, as Sellers’ Representative for and on behalf of the Sellers relating to this Agreement and the Transactions:
appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (i) to give and receive notices and communications,
(ii) to receive service of process with respect to any claim under this Agreement,
(iii) to agree to, negotiate, execute and deliver agreements, consents, waivers, documents and instruments, including amendments, extensions and waivers to this Agreement,
(iv) to agree to, negotiate and authorize payments in connection with the Purchase Price, the Purchase Price Adjustment and any other payments pursuant to the terms of this Agreement, and receive and disburse such payments to the Sellers,
(v) to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to such claims,
(vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by Buyer or any of Buyer’s Affiliates or any dispute under this Agreement, and
(vii) to take or refrain from taking all other action, and execute and deliver all additional agreements, documents, certificates and instruments, person appointed as Sellers’ Representative may deem necessary or appropriate in connection with the Transactions. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.
(b) Such agency may be changed by the Sellers from time to time upon not less than twenty (20) calendar days prior written notice to Buyer; provided that Sellers’ Representative may not be removed unless a majority in interest of the Sellers (calculated on the basis of pro rata percentages of net proceeds of the Purchase Price received by each Seller) agree to such removal and to the identity of the substituted agent or agents. Sellers’ Representative may resign at any time upon not less than thirty (30) calendar days’ prior written notice to Buyer, but in any event, not prior to the appointment of a substitute Sellers’ Representative. A vacancy in the position of Sellers’ Representative may be filled by the affirmative vote of a majority in interest of the Sellers (calculated on the basis of the Allocation Percentages). No bond shall be required of Sellers’ Representative. Notices or communications to or from Sellers’ Representative shall constitute notice to or from the Sellers. Sellers’ Representative shall be entitled to retain counsel and accountants and to incur such costs and expenses (including court costs and attorneys’ fees and expenses) as Sellers’ Representative deems in its sole discretion to be necessary or appropriate in connection with its performance of its obligations under this Agreement and all such costs and expenses incurred by the Sellers’ Representative shall be borne by the Sellers based on the Allocation Percentages.
(c) Sellers’ Representative shall have the right to recover from, at its sole discretion, the Sellers’ Representative Expense Fund, prior to any distribution to the Sellers, Sellers’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by successor Sellers’ Representative pursuant to this Section 11.16 1.5) as their representative and agent under this Agreement, the Escrow Agreement, the Put/Call Agreement and the Environmental Remediation Agreement.
(b) Until all obligations under this Agreement have been discharged (including all indemnification obligations under Article VIII of this Agreement), Sellers who, immediately prior to the “Charges”). If Closing, are entitled to receive 50% or more of the Closing Payment, may, from time to time upon written notice to Sellers’ Representative Expense Fund is insufficient and Buyer, remove Sellers’ Representative or appoint a new Sellers’ Representative upon the death, incapacity, resignation or removal of Sellers’ Representative. If, after the death, incapacity, resignation or removal of Sellers’ Representative, a successor Sellers’ Representative has not been appointed by Sellers within 30 business days after a request by Buyer, Buyer will have the right to appoint a Sellers’ Representative to fill any vacancy so created by written notice of such appointment to Sellers.
(c) Sellers authorize Sellers’ Representative to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Sellers’ Representative determines in Sellers’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable, which authority includes the execution and delivery of the Escrow Agreement on behalf of Sellers and any amendments or supplements thereto and the performance of all obligations thereunder, including authority to collect and pay funds and dispute, settle, compromise and make all claims. The authority of Sellers’ Representative includes the right to hire or retain, at the sole expense of Sellers, such counsel, investment bankers, accountants, representatives and other professional advisors as Sellers’ Representative determines in Sellers’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement and the Escrow Agreement. Any party will have the right to rely upon any action taken by Sellers’ Representative, and to act in accordance with such action without independent investigation.
(d) Buyer will have no liability to any Seller or otherwise arising out of the acts or omissions of Sellers’ Representative or any disputes among Sellers or with Sellers’ Representative. Buyer may rely entirely on its dealings with, and notices to and from, Sellers’ Representative to satisfy any obligations it might have under this Agreement, the Charges, then all Charges shall be borne by the Sellers based the Allocation Percentages. Escrow Agreement or any other agreement referred to in this Agreement or otherwise to Sellers.
(e) Sellers’ Representative shall not have any liability to any Seller for any action taken in good faith by Sellers’ Representative (after such consultation with Sellers as may be reasonable or appropriate under the right circumstances) pursuant to setoff its appointment hereunder. Sellers hereby agree jointly and severally to indemnify, defend and hold harmless Sellers’ Representative from and against any damages, costs, expenses, losses or liabilities (including, without limitation, any attorneys’ fees and costs) of any kind Sellers’ Representative may incur or sustain in connection with the performance in good faith of his duties hereunder. Without limiting the foregoing, Sellers agree to reimburse Sellers’ Representative, promptly upon Sellers Representative’s request therefore (together with reasonable supporting documentation), for all out-of-pocket expenses incurred in serving in that capacity and any costs and expenses incurred by Sellers’ Representative pursuant to this Section 11.16 against any distribution to or at the Sellers.
(d) A decision, act, consent or instruction of Sellers’ Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction direction of Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. Buyer is hereby relieved from any liability to any Person, including any Seller, for any acts done by it in accordance with or reliance on such decision, act, consent or instruction of Sellers’ Representative.
(e) All notices or other communications required to be made or delivered by Buyer to the Sellers shall be made to Sellers’ Representative for the benefit of the Sellers and any notices so made shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. All notices or other communications required to be made or delivered by any Seller to Buyer shall be made by Sellers’ Representative for the benefit of such Seller(s) and any notices so made shall discharge in full all notice requirements of such Seller(s) to Buyer with respect thereto.
(f) The Sellers hereby agree to severally indemnify Sellers’ Representative (in its capacity as such) in proportion to their respective Allocation Percentages against and to hold Sellers’ Representative (in its capacity as such) harmless from and waive, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to, or in connection with, this Agreement in such capacity; provided, that no Seller shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of Sellers’ Representative.
(g) Neither Sellers’ Representative nor any of its Non‑Recourse Parties shall incur any liability to any Seller relating to with the performance of Sellers’ Representative’s his duties hereunder, except for actions or omissions constituting gross negligence or willful misconduct. Sellers’ Representative accepts the appointment made by this Section 1.5 and its Non-Recourse Parties shall have no liability in respect agrees to abide by the provisions of any action, claim or proceeding brought against any such Person by any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faiththis Section 1.5.
Appears in 1 contract