Vendors’ Representative. (a) In order to administer efficiently the determination of certain matters under this Agreement, each of the Vendors hereby severally and irrevocable appoints the Vendors’ Representative as its representative, agent, proxy and attorney-in-fact, such designation and appointment being coupled with an interest, with full power of substitution, to take any action that is required under the Agreement or related ancillary documents to effectuate the completion of the transactions contemplated hereunder or to execute and deliver any documents on their behalf, and do and cause to be done all such acts and things as may be necessary or desirable in connection with this Agreement. Without limiting the generality of the foregoing, Vendors’ Representative may, on its own behalf and on behalf of the Vendors: (i) negotiate, settle and deliver the final forms of any documents that are necessary or desirable to give effect to the transactions contemplated hereunder; (ii) give and receive all notices and communications on behalf of such Vendor in connection with this Agreement; (iii) make all decisions and take all actions relating to the respective rights, obligations and remedies of such Vendor under this Agreement, including to receive and send notices, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification on behalf of such Vendor, to defend against indemnification claims of Pioneer Indemnified Parties, and to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to claims against such Vendor; (iv) amend, supplement or change this Agreement, or waive any provision hereof, including, without limitation, extending any time periods as may be contemplated herein, or terminating this Agreement; provided, that such amendment, supplement, change or waiver applies to all Vendors, based on their Pro Rata Share; (v) receive service of process on behalf of such Vendor in connection with any claims under this Agreement; and (vi) take all actions as are necessary or appropriate in judgement of the Vendors' Representative in connection with any of the foregoing, including retaining such counsel, accountants and other professional advisors as he reasonably deems necessary to assist him in the performance of his duties hereunder, all in Vendors’ Representative’s absolute discretion, as it deems appropriate. (b) Pioneer may rely upon any decision, act, consent or instruction of the Vendors’ Representative as being the decision, act, consent or instruction of each Vendor. Pioneer is hereby relieved from any liability to any Vendor for any acts taken by Pioneer in accordance with such decision, act, consent or instruction of the Vendors’ Representative. (c) The Vendors’ Representative shall be protected in acting upon any written notice, request, waiver, consent, certificate, receipt, statutory declaration or other paper or document furnished to him hereunder, not only as to its due execution, and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained therein which the Vendors’ Representative in good faith believes to be genuine and what it purports to be. (d) The Vendors will severally (and not jointly, or jointly and severally), based on their Pro Rata Share, defend, indemnify and hold harmless the Vendors’ Representative from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including legal fees, disbursements and charges, arising from or relating to the Vendors’ Representative performance of its obligations hereunder, except with respect to claims relating to the fraudulent action or intentional misrepresentation of the Vendors’ Representative.
Appears in 1 contract
Sources: Share Purchase Agreement
Vendors’ Representative. (a) In order to administer efficiently the determination of certain matters under this Agreement, each Each of the Vendors JDS Silver Shareholders, on behalf of himself, herself, or itself and his, her or its successors and assigns (collectively, “Vendor Parties”), hereby severally and irrevocable irrevocably appoints the Vendors’ Representative to serve as its representative, the agent, proxy representative and attorney-in-fact, fact of such designation and appointment being coupled with an interestVendor Parties, with the full and exclusive power of substitution, and authority to take any action that is required represent and bind such Vendor Parties with respect to all terms arising under and pursuant to this Agreement providing the Agreement or related ancillary documents to effectuate the completion of the transactions contemplated hereunder or to execute and deliver any documents on their behalf, and do and cause to be done all such acts and things as may be necessary or desirable in connection with this Agreement. Without limiting the generality of the foregoing, Vendors’ Representative maywith rights, on its own behalf authorities and obligations and all the transactions and documents contemplated hereby. Furthermore, each Vendor Party on behalf of himself, herself, itself and his, her or its successors and assigns, hereby irrevocably consents to the taking by the Vendors:
(i) negotiate, settle and deliver the final forms ’ Representative of any documents that are necessary and all actions and the making of any decisions required or desirable permitted to give effect to the transactions contemplated hereunder;
(ii) give and receive all notices and communications on behalf of be taken by such Vendor in connection with this Agreement;
(iii) make all decisions and take all actions relating to the respective rights, obligations and remedies of such Vendor Party under this AgreementAgreement and matters arising out of or relating thereto, including such power and authority to receive and send notices, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification on behalf of such Vendor, to defend against indemnification claims of Pioneer Indemnified Parties, and to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to claims against such Vendor;
(iv) amend, supplement or change this Agreement, or waive any provision hereof, includinginclude, without limitation, extending the power and authority (i) to give and receive notices of communications, (ii) to bring, defend or resolve any time periods as may be contemplated hereinclaim made pursuant hereto, or terminating this Agreement; provided(ii) making and settling indemnity claims, that such amendment, supplement, change or waiver applies and (iii) to all Vendors, based on their Pro Rata Share;
(v) receive service of process on behalf of such Vendor in connection with any claims under this Agreement; and
(vi) take all actions as are necessary or appropriate in judgement of the Vendors' Representative in connection with any of the foregoing, including retaining such counsel, accountants and other professional advisors as he reasonably deems necessary to assist him in the performance of his duties hereunder, all in Vendors’ Representative’s absolute discretion, as it deems appropriate.
(b) Pioneer may rely upon any decision, act, consent or instruction judgment of the Vendors’ Representative for the accomplishment of the foregoing, provided that the Vendors’ Representative shall not have the power or authority to consent to any amendment or modification of this Agreement on behalf of the Vendor Parties except to the extent separately authorized to do so in writing or such amendments are of a clerical or non-substantive nature. By her execution of this Agreement, the Vendors’ Representative hereby accepts her appointment as being the decisionVendors’ Representative for the specific purposes set out in this Agreement and in accordance with the foregoing. Purchaser shall be entitled to deal with the Vendors’ Representative on all matters under this Agreement providing the Vendors’ Representative with rights, actauthorities and obligations and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed by the Vendors’ Representative on behalf of any Vendor Party and on any other action taken or purported to be taken by the Vendors’ Representative on behalf of such the Vendor Parties, consent as fully binding upon such Vendor Party. All decisions, actions, consents and instructions of the Vendors’ Representative shall be final and binding upon all Vendor Parties and no Vendor Party shall have any right to object, dissent, protest or instruction of each Vendorotherwise contest the same. Pioneer is hereby relieved from The Vendors’ Representative shall not incur any liability to any Vendor for any acts taken by Pioneer in accordance with such decision, act, consent or instruction Party relating to the performance of the Vendors’ Representative.
(c) her duties hereunder. The Vendors’ Representative shall be protected not have by reason of this Agreement a fiduciary relationship in acting upon any written notice, request, waiver, consent, certificate, receipt, statutory declaration or other paper or document furnished to him hereunder, not only as to its due execution, and the validity and effectiveness of its provisions, but also as to the truth and acceptability respect of any information therein contained therein which Vendor Party. The Vendors’ 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. The Vendor Parties shall cooperate with the Vendors’ Representative and any accountants or lawyers whom the Vendors’ Representative may retain to assist in good faith believes to be genuine and what it purports to be.
(d) carrying out her duties hereunder. The Vendors will severally (and not jointly, or Vendor Parties shall jointly and severally), based on their Pro Rata Share, defend, severally indemnify and hold harmless the Vendors’ Representative from and its representatives against all claims, judgmentslosses, damages, liabilitiesreasonable costs, settlementspenalties, lossesfines and reasonable expenses (including reasonable expenses of the Vendors’ Representative’s legal counsel) which may be paid, costs and expensesincurred or suffered by the Vendors’ Representative by reason or as a result of the performance by the Vendors’ Representative of his obligations as Vendors’ Representative set out in this Agreement. If the Vendors’ Representative dies, including legal feesresigns, disbursements and chargesbecome disabled or is dissolved, arising from liquidated or relating wound up or otherwise is unable to fulfill the Vendors’ Representative responsibilities hereunder, then Participating Shareholders holding not less than 50.1% of all Participating Shares shall, within ten (10) business days after such death, resignation, disability, dissolution, liquidation, winding up, or inability, appoint a successor to the Vendors’ Representative performance and immediately thereafter notify Purchaser of its obligations hereunder, except with respect to claims relating to the fraudulent action or intentional misrepresentation identity of such successor. Any such successor will succeed the Vendors’ RepresentativeRepresentative as the as the agent, representative and attorney-in-fact of such Vendor Parties.
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