Appointment of the Sellers’ Representative. (a) Each of Stone and Sxxxx hereby appoint and designate the Sellers’ Representative as their representative to act on behalf of each such Seller for certain purposes, as specified in this Section 9.9. Stone and Sxxxx hereby grant to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this Agreement, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interest, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that the Sellers’ Representative will do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers. (b) In performing the functions specified in this Agreement, the Sellers’ Representative shall not be liable to any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s Expenses.
Appears in 1 contract
Appointment of the Sellers’ Representative. By the execution and delivery of this Agreement, each of the Sellers hereby irrevocably constitutes and appoints Orion Capital Partners, L.P. as his or its true and lawful agent and attorney-in-fact (a) Each of Stone and Sxxxx hereby appoint and designate the Sellers’ Representative as their representative to act on behalf ' Representative), with full power of each such Seller for certain purposessubstitution in the premises, as specified in this Section 9.9. Stone and Sxxxx hereby grant to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give receive the Excluded Assets, to hold the Excluded Assets either directly or through a holding company, liquidating trust or other entity, to take any and receive notices on behalf all such actions as it may deem necessary or appropriate to liquidate the Excluded Assets, to make provision for the payment of, and to pay, all fees and expenses for real estate and other taxes and maintenance and other fees and expenses which may be incurred in connection with the ownership and liquidation of each such Seller, the Excluded Assets and to distribute the remaining balance of the proceeds of the Excluded Assets as provided in Article 1 of this Agreement; (ii) to administer and resolve any claims arising under this Agreementreceive the Aggregate Purchase Price, to make provision for the payment of, and to pay, all fees and expenses to be borne by the Sellers as provided in Section 13.1 hereof from the proceeds of the Aggregate Purchase Price, to effect adjustments to the Aggregate Purchase Price and distribute the same in accordance with Article 2 of this Agreement and the Escrow Agreement; (iii) to take such other actions waive or modify any condition to the obligations of the Sellers to consummate the transactions contemplated by this Agreement; (iv) to execute and deliver all ancillary agreements, certificates and documents, and to make any representations or warranties therein, which the Sellers' Representative may deem necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (v) to do or to refrain from doing any act or deed on behalf of the Sellers as are which the Sellers' Representative may, in its sole discretion, deem necessary or appropriate in order to consummate the transactions contemplated by this Agreement Agreement, as fully and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed as completely as each such Seller could do if personally present; and (vi) to expand or alter the joint and several nature of the indemnification obligations receive all notices on behalf of the Sellers pursuant to Article VII hereofunder or in connection with this Agreement. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative Each of the Sellers will be deemed coupled with an interesthereby acknowledges and agrees that, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of while the Sellers’ ' Representative as the actions shall act on behalf of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to the manner which such Seller is a party. All that the Sellers’ ' Representative will do or cause believes to be done by virtue of his appointment as in the representative best interest of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in consistent with their obligations under this Agreement, the Sellers’ ' Representative shall not be liable responsible to the Sellers for any Seller loss or damage which any of the Sellers may suffer by reason of the exercise by the Sellers' Representative of its rights or the performance of its duties under this Agreement, other than such loss or damage arising from gross negligence or willful misconduct in the absence exercise of gross negligencesuch rights or performance of such duties. Further, willful misconduct or Fraud on the part of the Sellers’ RepresentativeSellers hereby agree, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, to indemnify and hold harmless the Sellers’ ' Representative from and against any loss, liability damage, cost or expense incurred without gross negligenceexpense, willful misconduct including attorneys fees or Fraud on expenses, which the part Sellers' Representative may incur or suffer which arise out of or relate to the exercise of its rights or the performance of its duties under this Agreement, other than such losses, damages, costs or expenses, which the Sellers' Representative may incur or suffer as a direct consequence of the Sellers’ Representative and arising out ' Representative's gross negligence or willful misconduct in the exercise of such rights or in connection with the acceptance or administration performance of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s Expensessuch duties.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each By the execution and delivery of Stone this Agreement, each Selling Party hereby irrevocably constitutes and Sxxxx hereby appoint appoints Axxxxx Xxxxxxxxxxx as the initial true and designate lawful agent and attorney in fact (the “Sellers' Representative”) of such Selling Party with full authority and power of substitution to act in the name, place and stead of such Selling Party with respect to the consummation of the transactions contemplated hereunder. Without limiting the generality of the foregoing, the Sellers’ ' Representative as their representative to act has full power and authority, on behalf of each such Seller for certain purposesSelling Party and his or its successors and assigns, as specified in this Section 9.9. Stone and Sxxxx hereby grant to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) interpret the terms and provisions of this Agreement and the Escrow Agreement, (ii) execute and deliver and receive deliveries of the Escrow Agreement and all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) negotiate and settle any dispute related to any post Net Working Capital adjustments as contemplated by Section 2.9, including by making or authorizing any payment to Purchaser on behalf of the Selling Parties in connection therewith, (iv) receive service of process in connection with any indemnification claims under this Agreement, (v) agree to, negotiate, enter into settlements and compromises of, and assume the defense of, indemnification claims (other than claims with respect to Sections 3.12(b)-(d) for which such authority shall vest only in the applicable Selling Party) and initiate claims and comply with orders and judgments with respect to such indemnification claims (other than claims arising under Sections 3.12(b)-(d) which shall be the sole responsibility of the applicable Seller), and to take all actions necessary or appropriate in the judgment of the Sellers' Representative for the accomplishment of the foregoing, (vi) give and receive notices on behalf of each such Sellerand communications, (iivii) authorize delivery or object to administer and resolve delivery to any Purchaser Indemnified Party of the Escrow Amount or any portion thereof in satisfaction of indemnification claims arising under this Agreementbrought by any Purchaser Indemnified Party hereunder, and (iiiviii) to take such other all actions necessary or appropriate in the judgment of the Sellers' Representative on behalf of the Sellers as are contemplated by in connection with this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubtAgreement.
(b) Purchaser, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interest, and the Purchaser and any other Person Person, may conclusively and absolutely rely, without inquiry, upon any actions consent, approval or action of the Sellers’ ' Representative as the actions consent, approval or action, as the case may be, of the Sellers hereunder each Selling Party individually and all Selling Parties as a group in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All herein, and each Selling Party confirms all that the Sellers’ ' Representative will shall do or cause to be done by virtue of his appointment as the Sellers' Representative. Notwithstanding the foregoing, the parties acknowledge that the Sellers' Representative shall have no authority or duty to any Person with respect to claims made with respect to Section 3.12(d), other than to receive service of process and notices with respect thereto.
(c) This power of attorney, and all authority hereby conferred, is irrevocable and will not be terminated by any act of any Selling Party or by operation of Law, whether by the death or incapacity of any Selling Party or by the occurrence of any other event. To the extent the preceding sentence is deemed unenforceable, each Selling Party covenants and agrees that he or it shall not voluntarily revoke the power of attorney conferred in this Section 7.16. If any Selling Party dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Selling Party being a “Former Selling Party”) and, as a result, the power of attorney conferred by this Section 7.16 is revoked by operation of law, it shall not be a breach by such Former Selling Party under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Selling Party (each a “Successor Selling Party”) confirm the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each appointment of the Sellers' Representative as agent and attorneys in fact for such Successor Selling Party.
(bd) In performing Each Selling Party hereby consents and agrees to all actions or inactions taken or omitted to be taken in good faith by the functions specified in Sellers' Representative under this Agreement. In connection with the exercise of his duties, the Sellers’ ' Representative shall not will be liable entitled to any Seller in the absence of gross negligenceconsult with and rely upon legal counsel and other professional advisors, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any costs thereof (and all other out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ ' Representative incident to discharging its duties under this Agreement or the Transaction Documents) to be allocated among the Selling Parties in accordance with their respective pro-rata ownership of the Sellers (the “Sellers’ Representative’s Expenses”amount of which may be withheld from any payment due to such Selling Parties hereunder). No Each Selling Party other than shall indemnify, defend and hold the Sellers Sellers' Representative harmless from and against its pro-rata share of any and all claims, losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs) which the Sellers' Representative may suffer or sustain as a result of any action taken, or not taken, in good faith hereunder. The Sellers' Representative shall have any liability for the Sellers’ Representative’s Expensesno duties except those which are expressly set forth herein. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE SELLERS' REPRESENTATIVE BE LIABLE TO ANY SELLING PARTY FOR ANY SPECIAL, SPECULATIVE, REMOTE, EXEMPLARY, INDIRECT, INCIDENTAL, TREBLE, CONSEQUENTIAL OR PUNITIVE DAMAGES.
Appears in 1 contract
Appointment of the Sellers’ Representative. Section 1.01 Marco Gxxxxxxx Xxxxxxxxx (a“Sellers’ Representative”) Each shall be, and hereby is, appointed as agent and attorney-in-fact for the Seller, for and on behalf of Stone the Seller to execute any and Sxxxx hereby appoint all instruments or other documents on behalf of the Seller, and designate to do any and all other acts or things on behalf of the Seller which the Sellers’ Representative as their representative may deem necessary or advisable, or which may be required pursuant to act on behalf the Agreement or otherwise, in connection with the consummation of each such Seller for certain purposesthe transactions contemplated thereby and the performance of all obligations thereunder before, as specified in this at or following the Closing.
Section 9.9. Stone and Sxxxx hereby grant to 1.02 Without limiting the generality of the foregoing, the Sellers’ Representative such powers shall have the full and exclusive authority as are necessary to carry out in the following functions as the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this Agreement, and (iii) to take such other actions on behalf absolute discretion of the Sellers as are contemplated by this Agreement and Sellers’ Representative to:
(a) agree with the other Transaction Documents Buyer with respect to any matter or otherwise thing required or deemed necessary or advisable by the Sellers’ Representative in furtherance connection with the provisions of the contemplated Transactions. For Agreement calling for the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature agreement of the Sellers; give and receive all notices and communications to be given by the Sellers or the Sellers’ Representative under the Agreement; and take all action contemplated to be taken by or on behalf of the Sellers by the terms of the Agreement, including in connection with the waiver of (A) any condition to the obligations of the Company to consummate the transactions contemplated thereby and (B) the defense and/or settlement of any claims for which the Sellers may be liable to the Buyer thereunder;
(b) in general, do all things and perform all acts, including without limitation executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Sellers’ Representative to be necessary or advisable in connection with, the Agreement; and agree to any amendments to the Agreement;
(c) take all actions necessary or desirable in connection with the defense or settlement of any indemnification claims pursuant to Article VIII and performance of obligations of the Sellers pursuant or the Sellers’ Representative; withhold funds for satisfaction of expenses or other liabilities or obligations and for potential indemnification claims made thereunder; and agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to Article VII hereof. The Purchaser such claims; and
(d) take any and any Purchaser Indemnified Party (A) shall be entitled to rely on any action all additional actions necessary or decision appropriate in the judgment of the Sellers’ Representative hereunder and (B) for the accomplishment of the foregoing.
Section 1.03 Notices or communications to or from the Sellers’ Representative shall have no liability constitute notice to any Seller for any actions taken pursuant to instructions within the authority or from each of the Sellers’ Representative. The appointment Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers’ Representative as to the representative initiation, defense, compromise, arbitration or settlement of any indemnification claim by the Buyer pursuant to the Agreement or any other actions required to be taken by the Sellers’ Representative under the Agreement, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Sellers’ Representative; nor shall any party hereunder have any cause of action against the Buyer for any failure by the Sellers’ Representative to perform his obligations hereunder for any reason, whether deliberate, inadvertent, due to negligence or otherwise.
Section 1.04 The Sellers will be deemed coupled shall cooperate with an interest, and the Purchaser Sellers’ Representative and any accountants, attorneys or other Person agents whom it may conclusively retain to assist in carrying out his duties hereunder. All actions, decisions and absolutely rely, without inquiry, upon any actions instructions of the Sellers’ Representative as in connection with discharging his duties hereunder and under the actions Agreement shall be conclusive and binding on the Seller and no the Seller shall have the right to object, dissent, protest or otherwise contest the same. No the Seller shall have any cause of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that action against the Sellers’ Representative will do for any action taken, decision made, payment made or cause instruction given by the Sellers’ Representative under the Agreement, except for willful misconduct by the Sellers’ Representative.
Section 1.05 The Sellers’ Representative shall not be deemed to be done by virtue have any fiduciary relationship with any Seller as a result of his appointment as the representative Sellers’ Representative, and no implied covenants, function, responsibilities, duties, obligations or liabilities shall be read into any document executed in connection herewith or otherwise against the Sellers’ Representative.
Section 1.06 The Sellers’ Representative may resign upon written notice to the Sellers. Any vacancy in the position of the Sellers’ Representative shall be filled by approval of the Sellers that held a majority of the shares as of immediately prior to the Closing.
Section 1.07 The provisions of this Article 1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that the Seller may have in connection with the Closing and the other transactions contemplated by the Agreement.
Section 1.08 The provisions of this Article 1 shall be binding upon the executors, heirs, legal representatives, assigns and successors of the Seller, whether pursuant to this Section 9.9 is hereby ratified testamentary disposition, the laws of descent and confirmed by each distribution, or otherwise, and the power of the Sellers.
(b) In performing the functions specified in this Agreement, attorney provided to the Sellers’ Representative shall not be liable to affected by the subsequent disability or incompetence of any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers.
Section 1.09 The Sellers’ RepresentativeRepresentative may take all other steps necessary, provided, that no such limitation shall apply to any damages owed to the Purchaser advisable or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless convenient for the Sellers’ Representative from to effectively discharge the duties of his appointment and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on his responsibilities hereunder and under the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s ExpensesAgreement.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each of Stone and Sxxxx Seller hereby appoint and designate appoints the Sellers’ Representative (with full power of substitution) as their representative its agent and attorney-in-fact to act on behalf of each such Seller for certain purposes, as specified it and in its name in connection with all matters related to this Section 9.9. Stone Agreement and Sxxxx hereby grant to the Sellers’ Representative such powers Transaction Documents and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this Agreement, and (iii) to take such other actions on behalf of the Sellers as are transactions contemplated by this Agreement and the Transaction Documents, and each Seller gives the Sellers’ Representative full power and authority to deliver assignments or other Transaction Documents or otherwise deemed necessary or advisable transfer documents in respect of its Units, to take all action contemplated to be taken by the Sellers’ Representative in furtherance of under this Agreement and the contemplated Transactions. For Transaction Documents, to receive on its behalf the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers Stock Consideration for its Units payable pursuant to Article VII hereof. The Purchaser 1, to execute amendments, supplements or waivers to this Agreement and any Purchaser Indemnified Party the Transaction Documents (A) shall be entitled subject to rely on any action or decision of Section 11.7), to give and receive all notices and other communications relating to this Agreement and the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interestTransaction Documents, and the Purchaser to execute any instruments and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All documents that the Sellers’ Representative will do or cause may determine necessary in the exercise of its authority pursuant to be done by virtue this power of his appointment attorney, all without notice to any of them and with the same effect as the representative if they had themselves taken such action; and each of the Sellers pursuant to this Section 9.9 is hereby ratified acknowledges and confirmed agrees that they shall be bound by, and CMI may rely and act upon, any action taken by each the Sellers’ Representative on behalf of the Sellers and upon any instruments and documents signed by the Sellers’ Representative with the same force and effect as if the Sellers had themselves so acted. By their execution hereof, the Sellers’ Representative hereby accepts such appointment and agrees to act as the Sellers’ Representative under this Agreement and the Transaction Documents and in connection therewith.
(b) In performing the functions specified in this Agreement, the The Sellers’ Representative shall not be liable to the Sellers for any Seller in the absence of gross negligence, willful misconduct action taken or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless omitted by the Sellers’ Representative from in good faith, and against in no event shall the Sellers’ Representative be liable or responsible to any lossof the Sellers. The Sellers shall, liability or expense incurred without gross negligencejointly and severally, willful misconduct or Fraud on hold the part Sellers’ Representative (acting in such capacity, but not in its capacity as a Seller) harmless from, and to indemnify and reimburse the Sellers’ Representative for, all costs and expenses of the Sellers’ Representative pursuant to this Agreement or the Transaction Documents and all Losses arising out of or in connection with any action, suit or claim arising under this Agreement and the acceptance or administration of hisTransaction Documents; provided, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by that the Sellers’ Representative shall not have acted in bad faith with respect to any of the events relating to such claims, liabilities, losses or expenses.
(the “c) The Sellers’ Representative’s ExpensesRepresentative agrees to provide each Seller with written notice of any claim made against a Seller (each, an “Affected Seller”)) for indemnification pursuant to Article 9 within three (3) Business Days of receipt of such Claim from CMI. No Party other than the Sellers shall have any liability for the The Sellers’ Representative’s ExpensesRepresentative shall give each Affected Seller an opportunity to participate in the response to any Claim, provided, however, that the Affected Seller responds promptly to the notice.
Appears in 1 contract
Appointment of the Sellers’ Representative. (1) Each Seller hereby irrevocably appoints the Sellers’ Representative, or any successor thereto, as its representative, agent, proxy and attorney in fact for such Seller and in such Seller’s name, place and stead for all purposes of this Agreement and any Ancillary Agreements.
(2) In order to administer efficiently the determination of certain matters under this Agreement and the Escrow Agreement, each Seller hereby agrees that the Purchaser, the Parent and the Escrow Agent will be entitled to:
(a) Each of Stone and Sxxxx hereby appoint and designate rely on the Sellers’ Representative as their representative having full power, authority and discretion to act make all decisions and take all actions relating to the Sellers’ respective rights, obligations and remedies under this Agreement including to receive and make payments, 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 each such Seller for certain purposesSellers and to defend against indemnification claims of the Purchaser Indemnified Parties; and
(b) deal only with the Sellers’ Representative in respect of all matters arising under this Agreement or the Escrow Agreement, including to receive and make payments, to receive and send notices (including notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against the Sellers or any one of them and to defend against indemnification claims of the Sellers.
(3) All references in this Agreement to decisions and actions to be taken by Sellers or any one of them, as specified the case may be, shall be deemed taken by the Sellers or any one of them, as the case may be, if such decisions or actions are taken by the Sellers’ Representative, in its capacity as the Sellers’ Representative. All references in this Agreement to decisions and actions to be taken by the Purchaser or the Parent and directed to the Sellers or any one of them, as the case may be, shall be deemed directed to the Sellers or any one of them, as the case may be, if such decisions or actions are directed by the Purchaser or the Parent to the Sellers’ Representative.
(4) The Sellers’ Representative, in its capacity as the Sellers’ Representative, shall enter into the Escrow Agreement (instead of all of the Sellers) with regard to the Escrow Fund. Any and all amounts payable to the Sellers under this Agreement from the Escrow Fund shall be paid by the Escrow Agent to the Sellers’ Representative, as the representative of the Sellers, and the Sellers’ Representative shall promptly distribute to each Seller its share of the net proceeds therefrom (less any reimbursement of expense provided for under this Section 9.9. Stone and Sxxxx hereby grant 11.1) as set forth in Schedule A, in immediately available funds to an account designated by such Seller.
(5) In no event shall the Purchaser, the Parent or the Escrow Agent be held responsible or liable for the application or allocation of any monies paid to the Sellers’ Representative such powers and authority as are necessary to carry out by the following functions as Purchaser or the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this AgreementEscrow Agent, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement Purchaser, the Parent and the other Transaction Documents or otherwise deemed necessary or advisable Escrow Agent shall be entitled to rely upon any notice provided thereto by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of taken by the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions acting within the authority scope of its authority.
(6) Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification defense shall be ineffective by reason only of it having been made or given to or by a Seller directly if each of the Purchaser, the Parent or the Escrow Agent and the other Sellers consent by virtue of not objecting to such dealings without the intermediary of the Sellers’ Representative. The .
(7) Each Seller and the Purchaser and the Parent hereby waive all potential conflicts of interest arising out of the Sellers’ Representative’s activities or authority, as the Sellers’ representative, and its relationships with the Purchased Companies or any of their Affiliates.
(8) Subject to the provisions hereof, the Sellers’ Representative hereby accepts the foregoing appointment and agrees to serve as the Sellers’ Representative subject to, and each Seller and the Purchaser and the Parent expressly acknowledges and agrees to, the limitation of the liability of the Sellers’ Representative as set forth below:
(a) The Sellers’ Representative shall be obligated to perform only the representative duties specifically set forth in this Agreement and shall have no implied duties or obligations.
(b) THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, SHALL HAVE NO LIABILITY TO THE SELLERS, THE PURCHASER OR THE PARENT FOR ANY ACT OR OMISSION IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE SELLERS’ REPRESENTATIVE.
(c) IN NO EVENT SHALL THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, BE LIABLE TO ANY SELLER, THE PURCHASER OR THE PARENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE AND OTHER RELATED DAMAGES.
(d) The Sellers’ Representative may rely and shall be protected in relying upon any document or instrument believed by the Sellers’ Representative to be genuine (or to be a genuine copy, facsimile, email/PDF of such document or instrument) and to have been signed by any Person, and shall not be liable for any action taken or omitted in accordance with the provisions of such instrument.
(e) The Sellers’ Representative may, from time to time (at the expense of the Sellers will be deemed coupled Sellers), consult with an interest, and the Purchaser and any other Person may conclusively and absolutely relylegal counsel (including, without inquirylimitation, upon counsel that has previously represented the Sellers’ Representative or the Company in connection with the transactions contemplated by this Agreement) with respect to any actions matter arising in connection with the rights or duties of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in under this Agreement or any other Transaction Document document relating to which the transactions contemplated by this Agreement, or in connection with the foregoing appointment, and shall not be liable to the Sellers for, and shall be fully protected with respect to, any action taken or omitted in reliance upon the advice of such Seller is a party. All that counsel.
(f) If any conflicting or inconsistent claims or demands are made in connection with this Agreement, or if the Sellers’ Representative will do or cause is in doubt as to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in what action it should take under this Agreement, the Sellers’ Representative may, at its option, refuse to comply with any claims or demands, or refuse to take any other action under this Agreement so long as such disagreement continues or reasonable doubt exists. The Sellers’ Representative shall not be liable in any way or to any Seller for its failure or refusal to act in accordance with the absence of gross negligence, willful misconduct or Fraud on the part of the foregoing sentence. The Sellers’ RepresentativeRepresentative shall be entitled to continue to refrain from acting until (A) the rights of all parties have been fully and finally adjudicated by a court of competent jurisdiction, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless B) the Sellers’ Representative from and against any losshas been notified in a writing signed by all interested parties that all differences have been settled by agreement among all of the interested parties. In addition, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of if the Sellers’ Representative and arising out has any doubt as to the course of action it should take under this Agreement, the Sellers’ Representative is authorized to petition any court of the State of Florida for instructions or in connection with the acceptance to interplead funds or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred assets held by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”)into such court. No Party other than the Sellers shall have any liability for Each Seller agrees to indemnify and hold the Sellers’ Representative’s ExpensesRepresentative harmless from any liability or losses occasioned by such action and to pay any and all of its fees, costs, expenses and attorneys’ fees incurred in any such action and agree that, on such petition or interpleader action, the Sellers’ Representative will be relieved of all liability. In no event will the Sellers’ Representative be required to take any actions described in this Section 11.1(8)(f).
(g) The Sellers’ Representative is directed to use funds from the Sellers’ Representative Expense Fund to pay for the retention and premium costs under the ESOP Trustee insurance policy (which shall be an amount equal to the ESOP Trustee Insurance Amount), the premium and retention costs under an insurance policy to be obtained by the Purchaser (at the expense of the Sellers), which shall be an amount equal to the Sellers’ Obligation Amount, as contemplated by Schedule 10.3, and the costs and fees incurred by the Sellers associated with resolving such obligations (which shall be an amount up to the Sellers’ Expense Amount). The obligations of the Sellers and the Recipients with respect to funding the Sellers’ Representative Expense Fund shall be as set forth on Schedule A, and any amounts remaining in the Sellers’ Representative Expense Fund, if any, shall be distributed to the applicable Sellers and Recipients as set forth on Schedule A.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each By the execution and delivery of Stone this Agreement, each Seller hereby irrevocably constitutes and Sxxxx hereby appoint appoints Xxxxxxx Xxxx as the initial true and designate lawful agent and attorney-in-fact (the “Sellers’ Representative”) of such Seller with full authority and power of substitution to act in the name, place and stead of such Seller with respect to the consummation of the transactions contemplated hereunder. Without limiting the generality of the foregoing, the Sellers’ Representative as their representative to act has full power and authority, on behalf of each Seller and his successors and assigns, to (i) interpret the terms and provisions of this Agreement and the Related Agreements, (ii) execute and deliver and receive deliveries of all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) negotiate and settle any dispute related to any post-Closing Purchase Price adjustments as contemplated by Section 1.05 including by making or authorizing any payment to Purchaser on behalf of Sellers from the Working Capital Escrow Amount in connection therewith, (iv) receive service of process in connection with any claims under this Agreement, (v) agree to, negotiate, enter into settlements and compromises of, pay on behalf of Sellers, and assume the defense of, any claims, and initiate claims and comply with orders and judgments with respect to such Seller for certain purposesclaims, as specified and to take all actions necessary or appropriate in this Section 9.9. Stone and Sxxxx hereby grant to the judgment of the Sellers’ Representative such powers and authority as are necessary to carry out for the following functions as accomplishment of the representative of each such Seller: foregoing, (ivi) to give and receive notices and communications, (vii) object to deliveries of the Working Capital Escrow Amount for Purchase Price adjustments, respectively, (viii) distribute any portion of the Working Capital Escrow Amount or the Adjustment Amount received by the Sellers’ Representative to Sellers, (ix) prepare and deliver the Payment Spreadsheet, (x) take all actions necessary or appropriate in the judgment of the Sellers’ Representative on behalf of each such Seller, (ii) to administer and resolve any claims arising under Sellers in connection with this Agreement, and (iiixi) to take such other actions on behalf of the Sellers as are contemplated by terminate this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party Section 10.01.
(Ab) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interestPurchaser, and the Purchaser and any other Person Person, may conclusively and absolutely rely, without inquiry, upon any actions consent, approval or action of the Sellers’ Representative as the actions consent, approval or action, as the case may be, of the each Seller individually and all Sellers hereunder as a group in all matters referred to in this Agreement or any other Transaction Document to which such herein, and each Seller is a party. All confirms all that the Sellers’ Representative will shall do or cause to be done by virtue of his its appointment as the representative of the Sellers pursuant Sellers’ Representative. If for any reason there is no Sellers’ Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in this Agreement, the Sellers’ Representative in which the Sellers’ Representative is authorized to act on behalf of the Sellers shall be deemed to refer to the Sellers holding a majority of the Units, taken as a whole. Any payment by Purchaser to the Sellers’ Representative under this Agreement shall be considered a payment by Purchaser to the Sellers and Purchaser shall have no liability for any claim by any Seller that it did not receive the portion of such payment that such Seller was entitled to under this Agreement or otherwise. Notices given to the Sellers’ Representative in accordance with the provisions of this Agreement shall constitute notice to the Sellers for all purposes under this Agreement.
(c) Each Seller covenants and agrees that he, she or it shall not voluntarily revoke the power of attorney conferred in this Section 12.01. If any Seller dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Seller being a “Former Seller”) and, as a result, the power of attorney conferred by this Section 12.01 is revoked by operation of law, it shall not be liable to any a breach by such Former Seller in under this Agreement so long as the absence heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of gross negligence, willful misconduct or Fraud on such Former Seller (each a “Successor Seller”) confirm the part appointment of the Sellers’ Representative, provided, that no Representative as agent and attorneys-in-fact for such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Successor Seller.
(d) Each Seller shall severally (based on such Seller’s respective percentage ownership of hereby consents and agrees to all actions or inactions taken or omitted to be taken in good faith by the Company as forth in Appendix A), Sellers’ Representative under this Agreement and not jointly, hereby agrees to indemnify and hold harmless the Sellers’ Representative from and against all damages, losses, Liabilities, charges, penalties, costs and expenses (including court costs and legal fees and expenses) incurred in any lossclaim, liability dispute or expense incurred without gross negligence, willful misconduct or Fraud on the part of Proceeding between the Sellers’ Representative and Sellers (or any of them) or between the Sellers’ Representative and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions.
(e) Notwithstanding anything to the contrary in this Agreement, the Sellers’ Representative shall not have any authority to amend this Agreement or any Related Agreement, or otherwise take any action on behalf of any Seller, if such amendment or action would (A) adversely and disproportionately affect a Seller relative to other Sellers, without the prior written of consent of such Seller, (B) increase the liability of a Seller relative to other Sellers under this Agreement, any Related Agreement or in connection with this Agreement beyond the acceptance liability agreed to by such Seller on the Closing, without the prior written of consent of such Seller, and/or (C) subject a Seller to any restrictive covenants (e.g., noncompetition, non-solicitation, non-disparagement or administration confidentiality) beyond those restrictive covenants agreed to by such Seller on the Closing, without the prior written of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s Expensesconsent of such Seller.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each of Stone By executing this Agreement, each CCA Stockholder hereby irrevocably appoints SP ComCorp LLC and Sxxxx hereby appoint and designate its duly appointed successors as the Sellers’ Representative as their representative and its or his true and lawful exclusive attorney-in-fact and agent, with full power of substitution or resubstitution, to act on behalf of each of, and in the name, place and stead of, such Seller CCA Stockholder in connection with this Agreement, the Transaction Documents and the transactions contemplated hereby or thereby or in any disputes involving this Agreement or the Transaction Documents (other than any disputes involving Actions for certain purposeswhich such CCA Stockholder is solely liable), to do or refrain from doing all such further acts and things, and to execute all such documents, in the name of, and on behalf of, such CCA Stockholder, as specified the Sellers’ Representative deems necessary or appropriate in this its sole discretion in connection with the Transactions, to the extent set forth below. The Sellers’ Representative shall have the power:
(a) to determine if the conditions to the CCA Stockholders’ obligation to consummate the Transactions set forth in Section 9.9. Stone 7.1 have been met or to waive one or more of the same on behalf of the CCA Stockholders;
(b) to take all actions to determine the Purchase Price and Sxxxx hereby grant resolve any disputes related thereto, as set forth in Section 1.4 hereof, including, without limitation, to negotiate, settle or compromise any dispute related thereto and deliver and receive notices;
(c) to receive, hold and pay any portion of the Purchase Price paid to the Sellers’ Representative in accordance with this Agreement;
(d) to execute and deliver, in the name of and on behalf of such powers CCA Stockholder, the Transaction Documents, as applicable, to which such CCA Stockholder is a party (with such modifications or changes therein as to which the Sellers’ Representative, in its sole and authority absolute discretion, shall have consented) and to execute and deliver in the name of and on behalf of such CCA Stockholder such amendments, modifications, supplements and side letters thereto as the Sellers’ Representative, in its sole and absolute discretion, determines to be necessary or desirable provided, that the Sellers’ Representative may not execute or deliver any material or adverse amendments, modifications, supplements or side letters under this Section 12.1(d) without first obtaining the written approval of each of the CCA Stockholders;
(e) to execute and deliver in the name of and on behalf of such CCA Stockholder such waivers and consents in connection with this Agreement and the Transaction Documents to which such CCA Stockholder is a party, to consummate the Transactions and/or to terminate this Agreement, in each case, as the Sellers’ Representative, in its sole and absolute discretion, may deem necessary or desirable;
(f) to apply the Purchase Price to the payment of, or reimbursement of the Sellers’ Representative for, the reasonable, necessary and documented out-of-pocket fees, costs, expenses and liabilities which the Sellers’ Representative incurs in the performance of its duties pursuant to this Agreement or the Transaction Documents to which any CCA Stockholder is a party;
(g) as the Sellers’ Representative, to enforce and protect the rights and interests of the CCA Stockholders and to enforce and protect the rights and interests of all CCA Stockholders arising out of or under or in any manner relating to this Agreement and the Transaction Documents, and to take any and all actions which the Sellers’ Representative believes are necessary to carry out or appropriate under this Agreement or the following functions as the representative Transaction Documents for and on behalf of each such Seller: CCA Stockholders, including (i) to give consenting to, compromising or settling any such Claims, conducting negotiations with Buyers and receive notices on behalf of each the Companies and their respective representatives regarding such SellerClaims, (ii) asserting or instituting any Claim against any Person (including pursuant to administer Section 6.12(b), Section 6.14 or Article 10); (iii) investigating, defending, contesting or litigating any Claim (including pursuant to Section 6.12(b), Section 6.14 or Article 10) (other than Claims for which such CCA Stockholder is solely liable) initiated by Buyers or any other Person, or by any Governmental Entity against the Sellers’ Representative, the Companies and/or any of the CCA Stockholders, and resolve receive process on behalf of any claims arising or all CCA Stockholders in any such Claim and compromise or settle on such terms as the Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Claim, action, proceeding or investigation; (iv) file any proofs of debt, Claims and petitions as the Sellers’ Representative may deem advisable or necessary; (v) settle or compromise any Claims (including pursuant to Section 6.12(b), Section 6.14 or Article 10) (other than Claims for which such CCA Stockholder is solely liable) asserted under either this AgreementAgreement or the Transaction Documents; and (vi) file and prosecute appeals from any decision, judgment or award rendered in any such Claim (including pursuant to Section 6.12(b), Section 6.14 or Article 10) (other than Claims for which such CCA Stockholder is solely liable), it being understood that the Sellers’ Representative (i) shall not have any obligation to take any such actions, (ii) shall not have any liability for any failure to take any such actions and (iii) shall not have the power to take such settle or compromise any Claims for which the CCA Stockholder may have separate defenses or which settlement or compromise would result in any CCA Stockholder being treated differently than any other actions on behalf CCA Stockholder.
(h) to refrain from enforcing any right of the Sellers as are contemplated by CCA Stockholders arising out of or under or in any manner relating to this Agreement and the other Transaction Documents Documents; provided, however, that no such failure to act on the part of the Sellers’ Representative, except as otherwise provided for in this Agreement or otherwise in the Transaction Documents, as applicable, shall be deemed necessary a waiver of any such right or advisable interest by the Sellers’ Representative or by the CCA Stockholders, unless such waiver is in furtherance writing signed by the waiving party or by the Sellers’ Representative;
(i) to make, execute, acknowledge, receive and deliver all such other agreements, settlement agreements, release of Claims, guarantees, orders, receipts, endorsements, notices, requests, information, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Sellers’ Representative, in its reasonable discretion, may consider necessary or appropriate in connection with or to carry out the Transactions;
(j) to hold, in anticipation of Closing, and to deliver to Buyers at Closing, any Share certificates representing the CCA Shares and WK Shares (or affidavits of lost certificates, including customary indemnification provisions), duly endorsed in blank for transfer, and irrevocable stock powers duly executed in blank; and
(k) to take all such actions as may be reasonably necessary after the date hereof, including without limitation after the Closing Date, to carry out any of the contemplated Transactions. For , including the actions required or permitted to be taken by the Sellers’ Representative under Section 6.14 or Article 10 and the defense and/or settlement of any Claims for which indemnification is sought pursuant to Section 6.12(b), Section 6.14 or Article 10 (in each case, other than Claims the Damages for which any CCA Stockholder (i) is or may be solely liable, (ii) is or may be liable in an amount different from the amount of such Damages for which any other CCA Stockholder may be liable subject to pro rata calculation, or (iii) may have different defenses than any other CCA Stockholder).
(l) Notwithstanding anything in this Agreement to the contrary, the Sellers’ Representative may not take or refrain from taking any action that would have the legal or practical effect of treating any CCA Stockholder differently from any other CCA Stockholder or result in any CCA Stockholder being subject to any injunctive or equitable relief or non-monetary damages or making any admission of wrong doing; provided, that, for the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A12.1(l) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interest, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that the Sellers’ Representative will do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in this Agreement, the Sellers’ Representative shall not be liable to any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless prohibit the Sellers’ Representative from and against taking, prior to Closing, any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred action explicitly permitted by the SellersStockholders’ Representative (Agreement or any other agreement among the “SellersCCA Stockholders or related to the Companies, or, after Closing, with respect to the CCA Stockholders only, any action that would have been explicitly permitted under the Stockholders’ Representative’s Expenses”). No Party Agreement or such other than the Sellers shall have any liability for the Sellers’ Representative’s Expensesagreement if it remained in effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nexstar Broadcasting Group Inc)
Appointment of the Sellers’ Representative. (1) Each Seller hereby irrevocably appoints the Sellers’ Representative, or any successor thereto, as its representative, agent, proxy and attorney in fact for such Seller and in such Seller’s name, place and stead for all purposes of this Agreement and any Ancillary Agreements.
(2) In order to administer efficiently the determination of certain matters under this Agreement and the Escrow Agreement, each Seller hereby agrees that the Purchaser, the Parent and the Escrow Agent will be entitled to:
(a) Each of Stone and Sxxxx hereby appoint and designate rely on the Sellers’ Representative as their representative having full power, authority and discretion to act make all decisions and take all actions relating to the Sellers’ respective rights, obligations and remedies under this Agreement including to receive and make payments, 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 each such Seller for certain purposesSellers and to defend against indemnification claims of the Purchaser Indemnified Parties; and
(b) deal only with the Sellers’ Representative in respect of all matters arising under this Agreement or the Escrow Agreement, including to receive and make payments, to receive and send notices (including notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against the Sellers or any one of them and to defend against indemnification claims of the Sellers.
(3) All references in this Agreement to decisions and actions to be taken by Sellers or any one of them, as specified the case may be, shall be deemed taken by the Sellers or any one of them, as the case may be, if such decisions or actions are taken by the Sellers’ Representative, in its capacity as the Sellers’ Representative. All references in this Agreement to decisions and actions to be taken by the Purchaser or the Parent and directed to the Sellers or any one of them, as the case may be, shall be deemed directed to the Sellers or any one of them, as the case may be, if such decisions or actions are directed by the Purchaser or the Parent to the Sellers’ Representative.
(4) The Sellers’ Representative, in its capacity as the Sellers’ Representative, shall enter into the Escrow Agreement (instead of all of the Sellers) with regard to the Escrow Fund. Any and all amounts payable to the Sellers under this Agreement from the Escrow Fund shall be paid by the Escrow Agent to the Sellers’ Representative, as the representative of the Sellers, and the Sellers’ Representative shall promptly distribute to each Seller its Pro Rata Share of the net proceeds therefrom (less any reimbursement of expense provided for under this Section 9.9. Stone and Sxxxx hereby grant 11.1), in immediately available funds to an account designated by such Seller.
(5) In no event shall the Purchaser, the Parent or the Escrow Agent be held responsible or liable for the application or allocation of any monies paid to the Sellers’ Representative such powers and authority as are necessary to carry out by the following functions as Purchaser or the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this AgreementEscrow Agent, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement Purchaser, the Parent and the other Transaction Documents or otherwise deemed necessary or advisable Escrow Agent shall be entitled to rely upon any notice provided thereto by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of taken by the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions acting within the authority scope of its authority.
(6) Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification defense shall be ineffective by reason only of it having been made or given to or by a Seller directly if each of the Purchaser, the Parent or the Escrow Agent and the other Sellers consent by virtue of not objecting to such dealings without the intermediary of the Sellers’ Representative. The .
(7) Each Seller and the Purchaser and the Parent hereby waive all potential conflicts of interest arising out of the Sellers’ Representative’s activities or authority, as the Sellers’ representative, and its relationships with the Purchased Companies or any of their Affiliates.
(8) Subject to the provisions hereof, the Sellers’ Representative hereby accepts the foregoing appointment and agrees to serve as the Sellers’ Representative subject to, and each Seller and the Purchaser and the Parent expressly acknowledges and agrees to, the limitation of the liability of the Sellers’ Representative as set forth below:
(a) The Sellers’ Representative shall be obligated to perform only the representative duties specifically set forth in this Agreement and shall have no implied duties or obligations.
(b) THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, SHALL HAVE NO LIABILITY TO THE SELLERS, THE PURCHASER OR THE PARENT FOR ANY ACT OR OMISSION IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE SELLERS’ REPRESENTATIVE.
(c) IN NO EVENT SHALL THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, BE LIABLE TO ANY SELLER, THE PURCHASER OR THE PARENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE AND OTHER RELATED DAMAGES.
(d) The Sellers’ Representative may rely and shall be protected in relying upon any document or instrument believed by the Sellers’ Representative to be genuine (or to be a genuine copy, facsimile, email/PDF of such document or instrument) and to have been signed by any Person, and shall not be liable for any action taken or omitted in accordance with the provisions of such instrument.
(e) The Sellers’ Representative may, from time to time (at the expense of the Sellers will be deemed coupled Sellers), consult with an interest, and the Purchaser and any other Person may conclusively and absolutely relylegal counsel (including, without inquirylimitation, upon counsel that has previously represented the Sellers’ Representative or the Company in connection with the transactions contemplated by this Agreement) with respect to any actions matter arising in connection with the rights or duties of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in under this Agreement or any other Transaction Document document relating to which the transactions contemplated by this Agreement, or in connection with the foregoing appointment, and shall not be liable to the Sellers for, and shall be fully protected with respect to, any action taken or omitted in reliance upon the advice of such Seller is a party. All that counsel.
(f) If any conflicting or inconsistent claims or demands are made in connection with this Agreement, or if the Sellers’ Representative will do or cause is in doubt as to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in what action it should take under this Agreement, the Sellers’ Representative may, at its option, refuse to comply with any claims or demands, or refuse to take any other action under this Agreement so long as such disagreement continues or reasonable doubt exists. The Sellers’ Representative shall not be liable in any way or to any Seller for its failure or refusal to act in accordance with the absence of gross negligence, willful misconduct or Fraud on the part of the foregoing sentence. The Sellers’ RepresentativeRepresentative shall be entitled to continue to refrain from acting until (A) the rights of all parties have been fully and finally adjudicated by a court of competent jurisdiction, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless B) the Sellers’ Representative from and against any losshas been notified in a writing signed by all interested parties that all differences have been settled by agreement among all of the interested parties. In addition, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of if the Sellers’ Representative and arising out has any doubt as to the course of action it should take under this Agreement, the Sellers’ Representative is authorized to petition any court of the State of Georgia for instructions or in connection with the acceptance to interplead funds or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred assets held by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”)into such court. No Party other than the Sellers shall have any liability for Each Seller agrees to indemnify and hold the Sellers’ Representative’s ExpensesRepresentative harmless from any liability or losses occasioned by such action and to pay any and all of its fees, costs, expenses and attorneys’ fees incurred in any such action and agree that, on such petition or interpleader action, the Sellers’ Representative will be relieved of all liability. In no event will the Sellers’ Representative be required to take any actions described in this Section 11.1(8)(f).
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each The Seller Parties have appointed, as of Stone the date hereof, Xxxxxxxx Xxxxx as the representative of the Seller Parties as described in this Section 9.02 and Sxxxx hereby appoint elsewhere in this Agreement. The Sellers’ Representative is designated as the exclusive authorized representative, attorney-in-fact and designate agent for and on behalf of the Seller Parties and their successors and assigns with respect to the post-Closing adjustments contemplated by Article II, claims for indemnification under Article VIII and the taking by the Sellers’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Sellers’ Representative under this Agreement, including the exercise of the power to: (i) deliver certain certificates or agreements to the Purchasers or such other persons as their representative the Sellers’ Representative deems necessary to consummate the Closing, including, without limitation, delivering the closing certificates set forth in Sections 2.06(a)(ix) and 6.03(c); (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any indemnification claims under this Agreement; (iii) litigate, arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to Article VIII; (iv) withhold from any amounts otherwise payable to the Sellers hereunder, or pursue and seek payment from the Seller Parties of, any Losses arising out of or resulting from a breach of any representation or warranty that specifically relates to the Seller Parties’ ownership of the Intangible Assets or the Shares; (v) seek and pursue any claims against third parties that the Sellers may have in respect of any Losses recovered by a Purchaser Indemnified Party hereunder and (vi) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. The Sellers’ Representative shall have authority and power to act on behalf of each such Seller for certain purposes, as specified in this Section 9.9. Stone and Sxxxx hereby grant the Sellers with respect to the Sellers’ Representative such powers disposition, settlement or other handling of the adjustments contemplated by Article II and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give all claims under Article VIII and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims all rights or obligations arising under this Agreement, and (iii) to take such other actions on behalf of the Sellers Article II or otherwise as are contemplated by this Agreement Agreement. The Seller Parties have agreed to be bound by all actions taken and the other Transaction Documents or otherwise deemed necessary or advisable documents executed by the Sellers’ Representative in furtherance of connection with Article II and Article VIII, and the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) Purchasers shall be entitled to rely on any such action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority Representative. In furtherance of the Sellers’ Representative. The appointment of foregoing, the Seller Parties have agreed and acknowledged that the Purchasers shall be entitled to rely on any instruction or direction provided by the Sellers’ Representative as pursuant to the representative terms of the Sellers will be deemed coupled with an interest, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or regarding the payment of any other Transaction Document amount owed to which such the Seller is a partyParties hereunder. All that the Sellers’ Representative will do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in this Agreement, the Sellers’ Representative may act upon any instrument or other writing believed by the Sellers’ Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable to any the Seller Parties in connection with the absence performance of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed his duties pursuant to the Purchaser or any provisions of its Affiliatesthis Agreement. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the The Sellers’ Representative shall be indemnified and held harmless by the Seller Parties from and against any loss, liability or expense Loss incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its his duties hereunder. The Seller Parties have agreed to release, including waive and not to xxx the Sellers’ Representative or any of his Affiliates, employees, agents or Representatives for any and all Losses, including, without limitation, statutory or common law rights of contribution or cost recovery, judgments or expenses which may now exist or which may hereafter arise in connection with the Companies or the Subsidiaries or any matter addressed by this Agreement or any other agreement contemplated by this Agreement. Any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (in connection with actions taken by the “Sellers’ RepresentativeRepresentative pursuant to this Section 9.02 or otherwise in connection with this Agreement, including the hiring of legal counsel and the incurring of legal fees and costs, shall be the responsibility of the Seller Parties. Without limiting the generality of the foregoing, the Sellers’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, and to consent to any amendment hereof or thereof, on behalf of the Seller Parties and their successors and assigns.
(b) The Seller Parties have appointed and authorized the Sellers’ Representative exclusive authorized representative, agent and attorney-in-fact of the Seller Parties, with full power to act according to the terms of this Agreement, and in general to do all things and to perform all acts including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney shall be deemed coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any Seller Party or by any act of any Seller Party or by operation of law, whether such Person’s Expenses”death or dissolution (unless Sellers’ Representative has actual knowledge of such Person’s death of dissolution), disability, protective supervision or any other event. No Party The Seller Parties hereby waive any and all defenses that may be available to contest, negate or disaffirm the action of the Sellers’ Representative taken in good faith under this Agreement. Notwithstanding the authority granted in this Section 9.02, no agreement, instrument, acknowledgement or other than act or document shall be ineffective solely by reason of the Sellers shall have any liability for (instead of the Sellers’ Representative’s Expenses) having signed or given the same directly. The Sellers’ Representative shall not be liable to any other Seller Party for any actions taken by him pursuant to this power of attorney except in the case of his willful misconduct.
(c) The provisions of this Section 9.02 shall in no way impose any obligations on the Purchasers. In particular, notwithstanding any notice received by the Purchasers to the contrary, the Purchasers shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no liability to the Seller Parties or the Sellers’ Representative with respect to actions, decisions or determinations of the Sellers’ Representative. The Purchasers shall be entitled to assume that all actions, decisions and determinations of the Sellers’ Representative are fully authorized.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each By the execution and delivery of Stone this Agreement, each Seller hereby irrevocably constitutes and Sxxxx hereby appoint appoints Xxxxx Xxxxxxxx as the initial true and designate lawful agent and attorney-in-fact (the “Sellers’ Representative”) of the Seller with full authority and power of substitution to act in the name, place and stead of such Seller with respect to the consummation of the transactions contemplated hereunder. Without limiting the generality of the foregoing, the Sellers’ Representative as their representative to act has full power and authority, on behalf of each such Seller for certain purposesand his, as specified in this Section 9.9. Stone her or its successors and Sxxxx hereby grant assigns, to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give interpret the terms and receive notices on behalf provisions of each such Sellerthis Agreement and the Related Agreements, (ii) execute and deliver and receive deliveries of all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to administer and resolve any claims arising under be given in connection with the consummation of the transactions contemplated by this Agreement, and including, without limitation, to prepare the deliver the Exhibit B, (iii) negotiate and settle any dispute related to take such other actions any post-Closing Purchase Price adjustments as contemplated by Section 1.04, including by making or authorizing any payment to Purchaser on behalf of the Sellers as are contemplated in connection therewith, (iv) receive service of process in connection with any indemnification claims under this Agreement, (v) agree to, negotiate, enter into settlements and compromises of, and assume the defense of, indemnification claims and initiate claims and comply with orders and judgments with respect to such indemnification claims, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing, (vi) give and receive notices and communications, (vii) authorize delivery or object to delivery to any Purchaser Indemnified Party of the Escrow Amount or any portion thereof in satisfaction of indemnification claims brought by this Agreement any Purchaser Indemnified Party for Indemnity Losses hereunder; (viii) take all actions desirable, advisable or required to be done by the Sellers pursuant to Article VIII, (ix) receive and distribute any portion of the Escrow Amount and the other Transaction Documents or otherwise deemed necessary or advisable Purchase Price adjustment, if any, pursuant to Section 1.04(g) received by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (Ax) shall be entitled to rely on any action take all actions necessary or decision appropriate in the judgment of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative on behalf of the Sellers will be deemed coupled in connection with an interestthis Agreement.
(b) Purchaser, and the Purchaser and any other Person Person, may conclusively and absolutely rely, without inquiry, upon any actions consent, approval or action of the Sellers’ Representative as the actions consent, approval or action, as the case may be, of the each Seller individually and all Sellers hereunder as a group in all matters referred to in this Agreement or any other Transaction Document to which such herein, and each Seller is a party. All confirms all that the Sellers’ Representative will shall do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers’ Representative.
(bc) In performing Each Seller covenants and agrees that he, she or it shall not voluntarily revoke the functions specified power of attorney conferred in this AgreementSection 9.01. If any Seller dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Seller being a “Former Seller”) and, as a result, the power of attorney conferred by this Section 9.01 is revoked by operation of law, it shall not be a breach by such Former Seller under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Seller (each a “Successor Seller”) confirm the appointment of the Sellers’ Representative shall not as agent and attorneys-in-fact for such Successor Seller.
(d) Each Seller hereby consents and agrees to all actions or inactions taken or omitted to be liable to any Seller taken in the absence of gross negligence, willful misconduct or Fraud on the part of good faith by the Sellers’ Representative, provided, that no such limitation shall apply Representative under this Agreement and hereby agrees to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any lossall damages, liability or expense incurred without gross negligencelosses, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of hisliabilities, her or its duties hereundercharges, including any out-of-pocket penalties, costs and expenses (including court costs and legal fees and other legal costs reasonably expenses) incurred by in any claim, dispute or Proceeding between any such person or persons and the Sellers’ Representative Seller (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have or any liability for the Sellers’ Representative’s Expensesof them) or between any such Person or Persons and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each of Stone and Sxxxx Seller hereby appoint and designate appoints the Sellers’ Seller’s Representative as their representative the sole agent of Seller to act on behalf of each such Seller for certain purposes, as specified in this Section 9.9. Stone and Sxxxx hereby grant regarding any matter relating to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims or arising under this Agreement, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative any document entered into in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interest, connection herewith and the Purchaser transactions contemplated hereby and thereby, including for the purposes of: (a) receiving any other Person may conclusively and absolutely rely, without inquiry, upon any actions payments due from the Buyer that are required under the terms of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that the Sellers’ Representative will do or cause document entered into in connection herewith to be done by virtue paid to Seller and, where applicable, distributing such payments to Holdco Sellers, pro rata based on their ownership of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
Seller; (b) In performing taking any action on behalf of Seller that may be necessary or desirable, as determined by the functions specified Seller’s Representative in its sole discretion, in connection with this Agreement, the Sellers’ Representative shall not be liable to any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or including in connection with the acceptance Cash Purchase Price adjustments provided for in Section 2.04, closing procedures provided for in Section 2.05, and the Tax covenants provided for in Section 7.01; (c) executing and delivering, on behalf of Seller, any notices, amendments, documents or administration certificates to be executed by Seller in connection with this Agreement or any document entered into in connection herewith and the transactions contemplated hereby and thereby; and (d) granting any waiver, consent or approval on behalf of hisSeller under this Agreement or any document entered into in connection herewith. As the representative of Seller under this Agreement and each other document entered into in connection herewith, her or its duties hereunder, including any out-of-pocket costs the Seller’s Representative shall act as the agent for Seller and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s Expensesauthority to bind Seller in accordance with this Agreement and each other document entered into in connection herewith.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each of Stone Xxxxx and Sxxxx Xxxxx hereby appoint and designate the Sellers’ Representative as their representative to act on behalf of each such Seller for certain purposes, as specified in this Section 9.9. Stone Xxxxx and Sxxxx Xxxxx hereby grant to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this Agreement, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interest, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that the Sellers’ Representative will do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in this Agreement, the Sellers’ Representative shall not be liable to any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any out-of-of- pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for the Sellers’ Representative’s Expenses.
Appears in 1 contract
Appointment of the Sellers’ Representative. (a) Each of Stone and Sxxxx The Sellers hereby appoint and designate the Sellers’ Representative as their representative to act on behalf of each such Seller the Sellers for certain purposes, as specified in this Section 9.99.09. Stone and Sxxxx The Sellers hereby grant to the Sellers’ Representative such powers and authority as are necessary to carry out the following functions as the representative Sellers’ Representative of each such Sellerthe Sellers: (i) to give and receive notices on behalf of each such Sellerthe Sellers, (ii) to administer and resolve any claims arising under this AgreementSection 2.06 and Article VIII hereof, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement and the other Transaction Documents or otherwise deemed necessary or advisable by the Sellers’ Representative in furtherance of the contemplated TransactionsDocuments. For the avoidance of doubt, nothing in this Section 9.9 9.09 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII VIII hereof. The Purchaser Parent and any Purchaser Parent Indemnified Party (A) shall be entitled to rely on any action or decision of the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of a Person as the Sellers’ Representative as the representative of the Sellers will be deemed coupled with an interestinterest and will be irrevocable, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is Sellers are a party. All that the Sellers’ Representative will do or cause to be done by virtue of his its appointment as the representative Sellers’ Representative of the Sellers pursuant to this Section 9.9 9.09 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in this AgreementAgreement or any other Transaction Document, the Sellers’ Representative shall not be liable to any Seller in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix APro Rata Allocation), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any loss, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Sellers’ Representative (the “Sellers’ Representative’s Representative Expenses”). No Party other than Neither Parent, Merger Sub nor the Sellers Company shall have any liability for the Sellers’ Representative’s Representative Expenses.
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
Appointment of the Sellers’ Representative. (1) Each Seller hereby irrevocably appoints the Sellers’ Representative, or any successor thereto, as its representative, agent, proxy and attorney in fact for such Seller and in such Seller’s name, place and stead for all purposes of this Agreement and any Ancillary Agreements.
(2) In order to administer efficiently the determination of certain matters under this Agreement and the Escrow Agreement, each Seller hereby agrees that the Purchaser, the Parent and the Escrow Agent will be entitled to:
(a) Each of Stone and Sxxxx hereby appoint and designate rely on the Sellers’ Representative as their representative having full power, authority and discretion to act make all decisions and take all actions relating to the Sellers’ respective rights, obligations and remedies under this Agreement including to receive and make payments, 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 each such Seller for certain purposesSellers and to defend against indemnification claims of the Purchaser Indemnified Parties; and
(b) deal only with the Sellers’ Representative in respect of all matters arising under this Agreement or the Escrow Agreement, including to receive and make payments, to receive and send notices (including notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against the Sellers or any one of them and to defend against indemnification claims of the Sellers.
(3) All references in this Agreement to decisions and actions to be taken by Sellers or any one of them, as specified the case may be, shall be deemed taken by the Sellers or any one of them, as the case may be, if such decisions or actions are taken by the Sellers’ Representative, in its capacity as the Sellers’ Representative. All references in this Agreement to decisions and actions to be taken by the Purchaser or the Parent and directed to the Sellers or any one of them, as the case may be, shall be deemed directed to the Sellers or any one of them, as the case may be, if such decisions or actions are directed by the Purchaser or the Parent to the Sellers’ Representative.
(4) The Sellers’ Representative, in its capacity as the Sellers’ Representative, shall enter into the Escrow Agreement (instead of all of the Sellers) with regard to the Escrow Fund. Any and all amounts payable to the Sellers under this Agreement from the Escrow Fund shall be paid by the Escrow Agent to the Sellers’ Representative, as the representative of the Sellers, and the Sellers’ Representative shall promptly distribute to each Seller its Pro Rata Share of the net proceeds therefrom (less any reimbursement of expense provided for under this Section 9.9. Stone and Sxxxx hereby grant 11.1), in immediately available funds to an account designated by such Seller.
(5) In no event shall the Purchaser, the Parent or the Escrow Agent be held responsible or liable for the application or allocation of any monies paid to the Sellers’ Representative such powers and authority as are necessary to carry out by the following functions as Purchaser or the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under this AgreementEscrow Agent, and (iii) to take such other actions on behalf of the Sellers as are contemplated by this Agreement Purchaser, the Parent and the other Transaction Documents or otherwise deemed necessary or advisable Escrow Agent shall be entitled to rely upon any notice provided thereto by the Sellers’ Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations of the Sellers pursuant to Article VII hereof. The Purchaser and any Purchaser Indemnified Party (A) shall be entitled to rely on any action or decision of taken by the Sellers’ Representative hereunder and (B) shall have no liability to any Seller for any actions taken pursuant to instructions acting within the authority scope of its authority.
(6) Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification defense shall be ineffective by reason only of it having been made or given to or by a Seller directly if each of the Purchaser, the Parent or the Escrow Agent and the other Sellers consent by virtue of not objecting to such dealings without the intermediary of the Sellers’ Representative. The .
(7) Each Seller and the Purchaser and the Parent hereby waive all potential conflicts of interest arising out of the Sellers’ Representative’s activities or authority, as the Sellers’ representative, and its relationships with the Purchased Companies or any of their Affiliates.
(8) Subject to the provisions hereof, the Sellers’ Representative hereby accepts the foregoing appointment and agrees to serve as the Sellers’ Representative subject to, and each Seller and the Purchaser and the Parent expressly acknowledges and agrees to, the limitation of the liability of the Sellers’ Representative as set forth below:
(a) The Sellers’ Representative shall be obligated to perform only the representative duties specifically set forth in this Agreement and shall have no implied duties or obligations.
(b) THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, SHALL HAVE NO LIABILITY TO THE SELLERS, THE PURCHASER OR THE PARENT FOR ANY ACT OR OMISSION IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE SELLERS’ REPRESENTATIVE.
(c) IN NO EVENT SHALL THE SELLERS’ REPRESENTATIVE, IN SUCH CAPACITY, BE LIABLE TO ANY SELLER, THE PURCHASER OR THE PARENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE AND OTHER RELATED DAMAGES.
(d) The Sellers’ Representative may rely and shall be protected in relying upon any document or instrument believed by the Sellers’ Representative to be genuine (or to be a genuine copy, facsimile, email/PDF of such document or instrument) and to have been signed by any Person, and shall not be liable for any action taken or omitted in accordance with the provisions of such instrument.
(e) The Sellers’ Representative may, from time to time (at the expense of the Sellers will be deemed coupled Sellers), consult with an interest, and the Purchaser and any other Person may conclusively and absolutely relylegal counsel (including, without inquirylimitation, upon counsel that has previously represented the Sellers’ Representative or the Company in connection with the transactions contemplated by this Agreement) with respect to any actions matter arising in connection with the rights or duties of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in under this Agreement or any other Transaction Document document relating to which the transactions contemplated by this Agreement, or in connection with the foregoing appointment, and shall not be liable to the Sellers for, and shall be fully protected with respect to, any action taken or omitted in reliance upon the advice of such Seller is a party. All that counsel.
(f) If any conflicting or inconsistent claims or demands are made in connection with this Agreement, or if the Sellers’ Representative will do or cause is in doubt as to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellers.
(b) In performing the functions specified in what action it should take under this Agreement, the Sellers’ Representative may, at its option, refuse to comply with any claims or demands, or refuse to take any other action under this Agreement so long as such disagreement continues or reasonable doubt exists. The Sellers’ Representative shall not be liable in any way or to any Seller for its failure or refusal to act in accordance with the absence of gross negligence, willful misconduct or Fraud on the part of the foregoing sentence. The Sellers’ RepresentativeRepresentative shall be entitled to continue to refrain from acting until (A) the rights of all parties have been fully and finally adjudicated by a court of competent jurisdiction, provided, that no such limitation shall apply to any damages owed to the Purchaser or any of its Affiliates. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, indemnify and hold harmless B) the Sellers’ Representative from and against any losshas been notified in a writing signed by all interested parties that all differences have been settled by agreement among all of the interested parties. In addition, liability or expense incurred without gross negligence, willful misconduct or Fraud on the part of if the Sellers’ Representative and arising out has any doubt as to the course of action it should take under this Agreement, the Sellers’ Representative is authorized to petition any court of the State of Florida for instructions or in connection with the acceptance to interplead funds or administration of his, her or its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred assets held by the Sellers’ Representative (the “Sellers’ Representative’s Expenses”)into such court. No Party other than the Sellers shall have any liability for Each Seller agrees to indemnify and hold the Sellers’ Representative’s ExpensesRepresentative harmless from any liability or losses occasioned by such action and to pay any and all of its fees, costs, expenses and attorneys’ fees incurred in any such action and agree that, on such petition or interpleader action, the Sellers’ Representative will be relieved of all liability. In no event will the Sellers’ Representative be required to take any actions described in this Section 11.1(8)(f).
Appears in 1 contract
Appointment of the Sellers’ Representative. (1) Each of the Sellers hereby appoints C. Russell de Burlo, Jr. (the "Sellers' Representative") or its dexxxxxx (xx xxxxxxxxx in writing), as the agent, proxy, and attorney-in-fact for such Seller for all purposes under this Agreement (including, without limitation, full power and authority to act on such Seller's behalf) to take any action, should it elect to do so in its sole discretion. Without limiting the generality of the foregoing, the Sellers' Representative shall be authorized to:
(a) Each of Stone in connection with the Closing, execute and Sxxxx hereby appoint receive all documents, instruments, certificates, statements and designate the Sellers’ Representative as their representative to act agreements on behalf of each such Seller for certain purposesof, as specified and in this Section 9.9. Stone and Sxxxx hereby grant to the Sellers’ Representative such powers and authority as are name of, the Sellers necessary to carry out effectuate the following functions as Closing and consummate the representative of each such Seller: (i) to give and receive notices on behalf of each such Seller, (ii) to administer and resolve any claims arising under transactions contemplated by this Agreement, and ;
(iiib) to take such other all actions on behalf of the Sellers as with respect to the matters set forth in Sections 1.4 and 1.5;
(c) take all actions on behalf of the Sellers in connection with any claims made under Article 8, including, without limitation, defending or settling any such claims and making any payments in respect thereof;
(d) receive notice demands, claims and other communications on behalf of any Seller under Section 10.2 of this Agreement, and
(e) take all other actions to be taken by or on behalf of the Sellers and exercise any and all rights which the Sellers are contemplated by permitted or required to do or exercise under this Agreement Agreement.
(2) Each Seller hereby unconditionally and irrevocably agrees to pay to the other Transaction Documents or otherwise deemed necessary or advisable Sellers' Representative, promptly upon request and in any event within 10 days of such request, such Seller's share of any amounts paid by the Sellers’ ' Representative in furtherance of the contemplated Transactions. For the avoidance of doubt, nothing in this Section 9.9 shall be deemed to expand or alter the joint and several nature of the indemnification obligations on behalf of the Sellers pursuant and agrees to Article VII hereofpay his or her share of any and all costs and expenses (including, without limitation, counsel and legal fees and expenses) incurred by the Sellers' Representative in connection with the protection, defense, expense or enforcement of any rights under this Agreement. The Purchaser Any and all payments made by any Purchaser Indemnified Party (A) Sellers under this Section 10.1 shall be entitled to rely on made free and clear of any action present or decision of the Sellers’ Representative hereunder future Taxes, deductions, charges or withholdings and (B) shall have no liability to any Seller for any actions taken pursuant to instructions within the authority of the Sellers’ Representative. The appointment of the Sellers’ Representative as the representative of the Sellers will be deemed coupled all liabilities with an interest, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Sellers’ Representative as the actions of the Sellers hereunder in all matters referred to in this Agreement or any other Transaction Document to which such Seller is a party. All that the Sellers’ Representative will do or cause to be done by virtue of his appointment as the representative of the Sellers pursuant to this Section 9.9 is hereby ratified and confirmed by each of the Sellersrespect thereto.
(b3) In performing the functions specified in this Agreement, the The Sellers’ ' Representative shall not be liable to any Seller for any action taken by it in the absence of gross negligence, willful misconduct or Fraud on the part of the Sellers’ Representative, provided, that no such limitation shall apply good faith pursuant to any damages owed to the Purchaser or any of its Affiliatesthis Agreement. Each Seller shall severally (based on such Seller’s respective percentage ownership of the Company as forth in Appendix A), and not jointly, jointly hereby agrees to indemnify and hold harmless the Sellers’ ' Representative from and against any loss, liability or expense and all Losses incurred without gross negligence, willful misconduct or Fraud on the part of by the Sellers’ ' Representative relating to the Sellers' Representative's capacity as the Sellers' Representative other than such claims or losses resulting from the Sellers' Representative's gross negligence or willful misconduct.
(4) The provisions of this Section 10.1 are independent and arising out of severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that the Company or any Seller may have in connection with the acceptance or administration transactions contemplated by this Agreement.
(5) The provisions of histhis Section 10.1 shall be binding upon the executors, her or its duties heirs, legal representatives, personal representatives, successor trustees, and successors of each Seller, and any references in this Agreement to a Seller shall mean and include the successors to such Seller's right hereunder, including whether pursuant to testamentary disposition, the laws of descent and distraction or otherwise.
(6) In the event that C. Russell de Burlo, Jr. dies, becomes unable to perform his responsibilxxxxx xxxxxxxxx xx xxsigns from the office of Sellers' Representative, Robin W. Dushman (or her designee) shall fill such vacancy and shall xx xxxxxx xx xx the Seller's Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(7) The Sellers' Representative may resign, and, subject to clause (6) of this Section 10.1, any out-of-pocket costs and expenses and legal fees and vacancy that results for any reason in the office of the Sellers' Representative may be filled, by those Sellers holding a majority of the outstanding shares of Common Stock held by all Sellers immediately after the Closing (the "Majority Sellers") upon not less than ten (10) days' prior written notice to Buyer. The Sellers shall not require the posting of any bond or other legal costs reasonably incurred form of security by the Sellers’ ' Representative (the “Sellers’ Representative’s Expenses”). No Party other than the Sellers shall have any liability for and the Sellers’ Representative’s Expenses' Representative shall receive no compensation for services rendered.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Ipswich Bancorp /Ma)
