Owner Representative. (a) By the execution and delivery of this Agreement, including counterparts hereof, each Owner hereby irrevocably constitutes and appoints Xxxxxxx Xxxxxxxxx as the true and lawful agent and attorney-in-fact (the “Owner Representative”) of such Owner with full powers of substitution to act in the name, place and stead of such Owner with respect to the performance on behalf of such Owner under the terms and provisions of this Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Owner’s behalf, as the Owner Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including: (i) to receive all payments made by the Purchaser to the Owners under this Agreement; (ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made; (iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners; (iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Owners, unless otherwise agreed by each Owner who is subject to any disparate treatment of a potentially adverse nature; (v) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Owner Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel; (vi) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and (viii) to do or refrain from doing any further act or deed on behalf of the Owners which the Owner Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting. (b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Owner Representative as the acts of the Owners in all matters referred to in this Agreement. Each of the Owners hereby ratifies and confirms all that the Owner Representative shall do or cause to be done by virtue of such Owner Representative’s appointment as Owner Representative of such Owner. The Owner Representative shall act for the Owners on all of the matters set forth in this Agreement in the manner the Owner Representative believes to be in the best interest of the Owners, but the Owner Representative shall not be responsible to any Owners for any loss or damage any Owners may suffer by reason of the performance by the Owner Representative of such Owner Representative’s duties under this Agreement, other than loss or damage arising from willful misconduct in the performance of such Owner Representative’s duties under this Agreement. (c) Each of the Owners hereby expressly acknowledges and agrees that the Owner Representative is authorized to act on behalf of such Owner notwithstanding any dispute or disagreement among the Owners, and that any person shall be entitled to rely on any and all action taken by the Owner Representative under this Agreement without liability to, or obligation to inquire of, any of the Owners. If the Owner Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Owner Representative shall be the person which the Owners which held a majority of the Transferred Shares at Closing appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Owner shall have the right to petition a court of competent jurisdiction for appointment of a successor Owner Representative. The Owners do hereby jointly and severally agree to indemnify and hold the Owner Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys’ fees) reasonably incurred or suffered as a result of the performance of such Owner Representative’s duties under this Agreement except for any such liability arising out of the willful misconduct of the Owner Representative.
Appears in 1 contract
Owner Representative. (a) By The Owner Representative, after appointment by the execution and delivery of this AgreementZephyr Owners, including counterparts hereof, each Owner hereby irrevocably constitutes and appoints Xxxxxxx Xxxxxxxxx shall serve as the true and lawful agent and their attorney-in-fact (and agent to the “Owner Representative”) of such Owner with full powers of substitution to act Zephyr Owners and their successors in the their name, place and stead of xxxxx in connection with the authority granted to such Owner Representative pursuant to this Section 10.12.
(b) After appointment by the Zephyr Owners, the Owner Representative will act as the sole point of contact between the Buyer Parties and the Zephyr Owners, to take any and all actions required or permitted to be taken by the Owner Representative under or in connection with this Agreement and to do all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, and for the following additional purposes: (A) to give and receive notices and communications to or from the Buyer Parties relating to this Agreement and the Ancillary Agreements and the other transactions contemplated by this Agreement and the Ancillary Agreements; (B) to execute and deliver the Paying Agent Agreement at the Closing, to give and receive notices and communications to or from the Paying Agent in matters relating to the Paying Agent Agreement, and to otherwise perform the Owner Representative’s obligations as set forth in the Paying Agent Agreement; (C) to act on such Zephyr Owner’s behalf with respect to the performance on behalf of such Owner under matters set forth in Section 2.9, in accordance with the terms and provisions of Section 2.9, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in Section 2.9; (D) to authorize deliveries to the Buyer Parties of cash from the Escrow Account in satisfaction of claims for indemnification pursuant to Article VIII, Section 2.9 or otherwise pursuant to this Agreement; (E) to authorize deliveries to the Zephyr Owners of cash from the Escrow Account once such funds are eligible for distribution therefrom; (F) to establish a reserve in the amount of $250,000.00 from the Merger Consideration with respect to the Zephyr Owners based upon their respective Zephyr Owner Percentage, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Owner’s behalf, as fund potential expenses of the Owner Representative shall deem necessary or appropriate in connection with any of carrying out its authorized duties hereunder (the transactions contemplated under this Agreement, including:
“Owner Representative Reserve”); (iG) to receive all payments made by the Purchaser to the Owners under this Agreement;
(ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made;
(iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners;
(iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Zephyr Owners, unless otherwise agreed by each Owner who is subject to initiate or to refrain from initiating or to dispute or to refrain from disputing any disparate treatment of a potentially adverse nature;
(v) to employ indemnity or other claim under this Agreement and obtain the advice of legal counselAncillary Agreements, accountants and other professional advisors as the Owner Representative, in his sole its reasonable discretion, deems determines to be necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel;
desirable; (viH) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and
(viii) to do or refrain from doing any further act or deed on behalf of the Owners Zephyr Owners, to negotiate, compromise and resolve any dispute which may arise under this Agreement or the Ancillary Agreements, as the Owner Representative deems Representative, in its reasonable discretion, determines to be necessary or desirable; (I) on behalf of the Zephyr Owners, to exercise or refrain from exercising remedies available under this Agreement and the Ancillary Agreements and to sign any release or other document with respect to such dispute or remedy, as the Owner Representative, in its reasonable discretion, determines to be necessary or desirable; (J) to consent or agree to any amendment to this Agreement or the Ancillary Agreements, as the Owner Representative, in its reasonable discretion, determines to be necessary or desirable; (K) to execute and deliver waivers and consents in connection with this Agreement and the Ancillary Agreements as the Owner Representative, in its reasonable discretion, determines to be necessary or desirable; and (L) to take all actions necessary or appropriate in his sole the reasonable discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting.
(b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocablefor the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Zephyr Owner, and any other person may conclusively (ii) agrees to be bound by all agreements and absolutely rely, without inquiry, upon any actions of determinations made by and documents executed and delivered by the Owner Representative as pursuant to the acts of the Owners in all matters referred authority granted to in this Agreement. Each of the Owners hereby ratifies and confirms all that the Owner Representative shall do or cause to be done by virtue of such Owner Representative’s appointment as Owner Representative of such Ownerit hereunder. The Owner Representative shall act for the Owners on all of the matters have no duties or responsibilities except those expressly set forth in this Agreement in and the manner the Owner Representative believes to be in the best interest Letter of the Owners, but the Owner Representative shall not be responsible to any Owners for any loss or damage any Owners may suffer by reason of the performance by the Owner Representative of such Owner Representative’s duties under this Agreement, other than loss or damage arising from willful misconduct in the performance of such Owner Representative’s duties under this AgreementTransmittal.
(c) Each of After appointment by the Owners hereby expressly acknowledges and agrees that Zephyr Owners, the Owner Representative is will be authorized to act on behalf of such Owner a Zephyr Owners behalf, notwithstanding any dispute or disagreement among between any Zephyr Owner and the OwnersOwner Representative, and that each Indemnified Party and any person other Person shall be entitled to rely on any and all action actions taken by the Owner Representative under this Agreement without any liability to, or obligation to inquire of, any of the Zephyr Owners. If Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Owner Representative resigns that is within the scope of the Owner Representative’s authority under this Section 10.12 shall constitute a notice or ceases communication to function in or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Zephyr Owners and shall be final, binding and conclusive upon each such capacity for Zephyr Owner. Each Indemnified Party and any reason whatsoeverother Person shall be entitled to rely upon any such notice, then communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Zephyr Owner.
(d) The Owner Representative may resign at any time upon written notice to the Buyer Parties and by providing the Buyer Parties with the name of the successor Owner Representative shall be as designated by action of the person which the Zephyr Owners which held who hold a majority of the Transferred Shares at Closing appoint; provided, however, that if Zephyr Owner Percentage. If for any reason no successor has been appointed pursuant to the foregoing within thirty sixty (3060) days, then any Owner the Buyer Parties shall have the right to petition a court of competent jurisdiction for appointment of appoint a successor Owner Representative. (which successor shall be independent of the Buyer Parties and their Affiliates).
(e) The Owners do hereby jointly and severally agree to indemnify and hold authorizations of the Owner Representative harmless from shall be effective until its rights and against obligations under this Agreement terminate by virtue of the termination of any and all liability, loss, cost, damage or expense (including without limitation attorneys’ fees) reasonably incurred or suffered as a result of the performance of such Owner Representative’s duties under this Agreement except for any such liability arising out of the willful misconduct obligations of the Owner RepresentativeRepresentative and the Buyer under this Agreement.
(f) The Buyer Parties shall be entitled to deal exclusively with, and rely upon the authority of, the Owner Representative to act as the agent of the Zephyr Owners.
Appears in 1 contract
Owner Representative. (a) By the execution and delivery of this Agreement, including counterparts hereof, each Each Owner hereby irrevocably constitutes appoints and appoints Xxxxxxx Xxxxxxxxx designates Savant as the true and lawful agent his representative and attorney-in-fact (the “Owner "Representative”) of such Owner with full powers of substitution to act in the name, place and stead of such Owner with respect to the performance on behalf of such Owner under the terms and provisions of this Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Owner’s behalf, as the Owner Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) to receive all payments made by the Purchaser to the Owners under this Agreement;
(ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made;
(iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners;
(iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Owners, unless otherwise agreed by each Owner who is subject to any disparate treatment of a potentially adverse nature;
(v) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Owner Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel;
(vi) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and
(viii) to do or refrain from doing any further act or deed on behalf of the Owners which the Owner Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting").
(b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Owner Representative as the acts of the Owners in all matters referred to in this Agreement. Each of the Owners hereby ratifies authorize the Representative (i) to take all action necessary in connection with (AA) the waiver of any condition to the obligations of any Owner to consummate the transactions contemplated hereby, or (BB) the defense and/or settlement of any claims for which any Owner may be required to indemnify Buyer pursuant to ARTICLE 5 4 6 hereof; (ii) to give and confirms receive all that the Owner Representative shall do notices required or cause to be done by virtue of such Owner Representative’s appointment as Owner Representative of such Owner. The Owner Representative shall act for the Owners on all of the matters set forth in this Agreement in the manner the Owner Representative believes to be in the best interest of the Owners, but the Owner Representative shall not be responsible to any Owners for any loss or damage any Owners may suffer by reason of the performance by the Owner Representative of such Owner Representative’s duties permitted under this Agreement, other than loss and (iii) to take any and all additional action as is contemplated to be taken by or damage arising from willful misconduct in on behalf of the performance Owners by the terms of such Owner Representative’s duties under this Agreement.
(c) Each of In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Owners hereby expressly acknowledges will select another representative to fill each such vacancy and agrees that such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and Parent or Buyer relating to the waiver of any condition to the obligations of any Owner Representative is authorized to act on behalf consummate the transaction contemplated hereby, or (ii) the defense or settlement of such Owner notwithstanding any dispute claims for which the Owners may be required to indemnify Parent or disagreement among Buyer pursuant to ARTICLE 5 hereof will be binding upon all of the Owners, and that any person shall be entitled to rely on any and all action taken by the no Owner Representative under this Agreement without liability to, or obligation to inquire of, any of the Owners. If the Owner Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Owner Representative shall be the person which the Owners which held a majority of the Transferred Shares at Closing appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Owner shall will have the right to petition a court object, dissent, protest or otherwise contest the same.
(e) By their execution of competent jurisdiction this Agreement, each of the Owners agree that:
(1) Parent and Buyer will be able to rely conclusively on the written instructions and written decisions of the Representative as to (AA) the settlement of any claims made pursuant to ARTICLE 5 hereof, and (BB) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against Parent or Buyer for appointment any action taken by Parent or Buyer in reliance upon the instructions or decisions of a successor Owner the Representative. The Owners do hereby jointly ;
(2) all actions, decisions and severally agree instructions of the Representative will be conclusive and binding upon all of the Owners, and, except as otherwise agreed to indemnify and hold by the Owner Representative harmless from and Owners, no party hereto will have any cause of action against any and all liabilitythe Representative, loss, cost, damage or expense (including without limitation attorneys’ fees) reasonably incurred or suffered in his capacity as a result Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(3) the provisions of this SECTION 1.7 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Owner may have in connection with the transactions contemplated by this Agreement; and
(4) the provisions of this SECTION 1.7 will be binding upon the executors, heirs, legal representatives and successors of each Owner, and any references in this Agreement to an Owner will mean and include the successors to the rights of the performance Owners hereunder, whether pursuant to testamentary disposition, the laws of such descent and distribution or otherwise. Notwithstanding the foregoing, the Representative may not bind any Owner Representative’s duties under this Agreement except for any such liability arising out of the willful misconduct of the Owner Representativewith respect to matters pertaining to ARTICLE 7 hereof.
Appears in 1 contract
Owner Representative. (a) By the execution and delivery of this Agreement, including counterparts hereof, each Each Owner hereby irrevocably constitutes appoints and appoints Xxxxxxx Xxxxxxxxx designates Haeri as the true and lawful agent his representative and attorney-in-fact (the “Owner "Representative”) of such Owner with full powers of substitution to act in the name, place and stead of such Owner with respect to the performance on behalf of such Owner under the terms and provisions of this Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Owner’s behalf, as the Owner Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) to receive all payments made by the Purchaser to the Owners under this Agreement;
(ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made;
(iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners;
(iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Owners, unless otherwise agreed by each Owner who is subject to any disparate treatment of a potentially adverse nature;
(v) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Owner Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel;
(vi) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and
(viii) to do or refrain from doing any further act or deed on behalf of the Owners which the Owner Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting").
(b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Owner Representative as the acts of the Owners in all matters referred to in this Agreement. Each of the Owners hereby ratifies authorize the Representative (i) to take all action necessary in connection with the defense and/or settlement of any claims for which any Owner may be required to indemnify Buyer pursuant to ARTICLE 5 hereof; (ii) to give and confirms receive all that the Owner Representative shall do notices required or cause to be done by virtue of such Owner Representative’s appointment as Owner Representative of such Owner. The Owner Representative shall act for the Owners on all of the matters set forth in this Agreement in the manner the Owner Representative believes to be in the best interest of the Owners, but the Owner Representative shall not be responsible to any Owners for any loss or damage any Owners may suffer by reason of the performance by the Owner Representative of such Owner Representative’s duties permitted under this Agreement, other than loss and (iii) to take any and all additional action as is contemplated to be taken by or damage arising from willful misconduct in on behalf of the performance Owners by the terms of such Owner Representative’s duties under this Agreement.
(c) Each In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Bemexx xxxll fill such vacancy and shall be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, any agreement between the Representative and Buyer relating to the defense or settlement of any claims for which the Owners hereby expressly acknowledges and agrees that the Owner Representative is authorized may be required to act on behalf indemnify Buyer pursuant to ARTICLE 5 hereof will be binding upon all of such Owner notwithstanding any dispute or disagreement among the Owners, and that any person shall be entitled to rely on any and all action taken by the no Owner Representative under this Agreement without liability to, or obligation to inquire of, any of the Owners. If the Owner Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Owner Representative shall be the person which the Owners which held a majority of the Transferred Shares at Closing appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Owner shall will have the right to petition a court object, dissent, protest or otherwise contest the same.
(e) By their execution of competent jurisdiction this Agreement, each of the Owners agree that:
(1) Buyer will be able to rely conclusively on the written instructions and written decisions of the Representative as to (AA) the settlement of any claims made pursuant to ARTICLE 5 hereof, and (BB) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against Buyer for appointment any action taken by Buyer in reliance upon the instructions or decisions of a successor Owner the Representative. The Owners do hereby jointly ;
(2) all actions, decisions and severally agree instructions of the Representative will be conclusive and binding upon all of the Owners, and, except as otherwise agreed to indemnify and hold by the Owner Representative harmless from and Owners, no party hereto will have any cause of action against any and all liabilitythe Representative, loss, cost, damage or expense (including without limitation attorneys’ fees) reasonably incurred or suffered in his capacity as a result Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(3) the provisions of this SECTION 1.8 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Owner may have in connection with the transactions contemplated by this Agreement; and
(4) the provisions of this SECTION 1.8 will be binding upon the executors, heirs, legal representatives and successors of each Owner, and any references in this Agreement to an Owner will mean and include the successors to the rights of the performance Owners hereunder, whether pursuant to testamentary disposition, the laws of such descent and distribution or otherwise. Notwithstanding the foregoing, the Representative may not bind any Owner Representative’s duties under this Agreement except for any such liability arising out of the willful misconduct of the Owner Representativewith respect to matters pertaining to ARTICLE 7 hereof.
Appears in 1 contract
Owner Representative. (a) By the execution and delivery of this Agreement, including counterparts hereof, each Each Owner hereby irrevocably constitutes and appoints Xxxxxxx Xxxxxxxxx as the true and lawful agent and attorney-in-fact X. Xxxxx (the “Owner Representative”) of such as attorney-in-fact, and authorizes the Owner with full powers of substitution Representative to act in on their behalf to supervise the nameClosing, place to execute and stead deliver any instruments, agreements or documents required of such any Owner with respect and receive documents required of Federated at the Closing, to the performance on behalf of such give and receive any notices for any Owner under the terms and provisions of pursuant to this Agreement, as the same may be from time to time amendedreceive and distribute any amounts payable by Federated hereunder or under any other Transaction Documents, to take any other action required or permitted by this Agreement, and to do or refrain from doing administer all such further acts other matters related to this Agreement and things, and to execute all such documents on such Owner’s behalfthe other Transaction Documents, as the Owner Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) to receive all payments made by the Purchaser to the Owners under this Agreement;
(ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made;
(iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners;
(iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights hereby and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Owners, unless otherwise agreed by each Owner who is subject to any disparate treatment of a potentially adverse nature;
(v) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Owner Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel;
(vi) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and
(viii) to do or refrain from doing any further act or deed on behalf of the Owners which the Owner Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting.
(b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Owner Representative as the acts of the Owners in all matters referred to in this Agreementthereby. Each of the Owners Owner hereby ratifies and confirms all actions that the Owner Representative shall do or cause to be done by virtue of such Owner Representative’s his appointment as the Owner Representative of such the Owner. The Owner Representative shall act for the Owners each Owner on all of the matters set forth in this Agreement and any other Transaction Document in the manner the Owner Representative believes to be in the best interest of each Owner and consistent with the Ownersobligations under this Agreement and any other Transaction Document, but the Owner Representative shall not be responsible to any Owners Owner for any loss or damage Losses any Owners Owner may suffer by reason of the performance by the Owner Representative of such Owner Representative’s his duties under this Agreement, other than loss or damage Losses arising from the willful misconduct or gross negligence in the performance of such Owner Representative’s his duties under this Agreement.
(c) Agreement or any other Transaction Document. Each of the Owners hereby expressly acknowledges Owner agrees jointly and agrees that severally to indemnify, defend and hold harmless the Owner Representative is authorized to act on behalf of such Owner notwithstanding any dispute or disagreement among the Owners, and that any person shall be entitled to rely on any and all action taken by the Owner Representative under this Agreement without liability to, or obligation to inquire of, any of the Owners. If the Owner Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Owner Representative shall be the person which the Owners which held a majority of the Transferred Shares at Closing appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Owner shall have the right to petition a court of competent jurisdiction for appointment of a successor Owner Representative. The Owners do hereby jointly and severally agree to indemnify and hold the Owner Representative harmless his representatives from and against any and all liability, loss, cost, damage Losses that may be incurred by any of them arising out of or expense in connection with his appointment as Owner Representative under this Agreement and the other Transaction Documents (including without limitation attorneys’ fees) reasonably incurred except such as may result from the Owner Representative’s willful misconduct or suffered as a result of gross negligence in the performance of such Owner Representative’s his duties under this Agreement), including the legal costs of defending himself against any claim or Liability in connection with his performance under this Agreement except and any other Transaction Document executed and delivered by the Owner Representative in connection with this Agreement. Except to the extent that the Owner Representative, as one of the Owner Parties, has agreed to be responsible (along with the other Owner Parties as contemplated herein) for any such liability indemnification obligations arising out of actions of or breaches by the willful misconduct of Owners who are not Owner Parties, the Owner Representative, each Owner and Federated expressly acknowledge that the Owner Representative shall have no authority or responsibility to act on behalf of any Owner in connection with any claim, action or proceeding initiated against such Owner pursuant to a breach by such Owner of such Owner’s individual representations, warranties or covenants hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Federated Investors Inc /Pa/)
Owner Representative. (a) By their approval of the execution and delivery of this Agreement, including counterparts hereofMerger, each Owner hereby irrevocably constitutes of the Owners shall conclusively be deemed to have consented to, approved and appoints Xxxxxxx Xxxxxxxxx agreed to be personally bound by, as applicable: (i) the appointment of TC Equity Partners IV, L.L.C. as the true initial Owner Representative and lawful agent and as the attorney-in-fact (the “Owner Representative”) of such Owner with full powers of substitution to act in the name, place and stead of such Owner with respect to the performance agent for and on behalf of such Owner under each of the terms and provisions of Owners as provided in this Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Owner’s behalf, as the Owner Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) to receive all payments made by the Purchaser to the Owners under this Agreement;
; (ii) to agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price pursuant to Article 3 or otherwise or other payments to be made;
(iii) to act for the Owners with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the Owners any indemnification claim made by or against the Owners;
(iv) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Owners in the reasonable judgment of the Owner Representative, shall be taken in the same manner with respect to all Owners, unless otherwise agreed by each Owner who is subject to any disparate treatment of a potentially adverse nature;
(v) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Owner Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Owner Representative and to rely on their advice and counsel;
(vi) to incur and pay out of the Purchase Price expenses, including fees of attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as Owner Representative; and
(viii) to do or refrain from doing any further act or deed on behalf of the Owners which the Owner Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Owners could do if personally present and acting.
(b) The appointment of the Owner Representative shall be deemed coupled with an interest and shall be irrevocable, and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Owner Representative as the acts of the Owners in all matters referred to in this Agreement. Each of the Owners hereby ratifies and confirms all that the Owner Representative shall do or cause to be done by virtue of such Owner Representative’s appointment as Owner Representative of such Owner. The Owner Representative shall act for the Owners on all of the matters set forth in this Agreement in the manner the Owner Representative believes to be in the best interest of the Owners, but the Owner Representative shall not be responsible to any Owners for any loss or damage any Owners may suffer by reason of the performance taking by the Owner Representative of such Owner Representative’s duties under this Agreement, other than loss or damage arising from willful misconduct in the performance of such Owner Representative’s duties under this Agreement.
(c) Each of the Owners hereby expressly acknowledges and agrees that the Owner Representative is authorized to act on behalf of such Owner notwithstanding any dispute or disagreement among the Owners, and that any person shall be entitled to rely on any and all action actions and the making of any decisions required or permitted to be taken by the Owner Representative under this Agreement without liability to, or Agreement; (iii) the obligation of each Owner to inquire of, any of the Owners. If reimburse the Owner Representative resigns or ceases to function as set forth in such capacity for any reason whatsoever, then the successor last sentence of this Section 2.7 in the event that the Owner Representative shall be incurs any expenses in connection with fulfilling its responsibilities under Article VI, which expenses are not otherwise reimbursable by the person which Fund in accordance with Article VI; and (iv) the Owners which held a majority of the Transferred Shares at Closing appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Owner shall have the right to petition a court of competent jurisdiction for appointment of a successor Owner Representative. The Owners do hereby jointly and severally agree obligation to indemnify and hold the Owner Representative harmless from and against any and all liabilityLosses incurred by such Person in conduct of its duties under Article VI, loss, cost, damage except to the extent of any such Losses arising from fraud or expense (including without limitation attorneys’ fees) reasonably incurred or suffered as a result of wilful misconduct by the performance of such Owner Representative’s duties . The Owner Representative shall have authority and power to act on behalf of each Owner with respect to the disposition, settlement or other handling of all indemnity claims under this Agreement except for Article VI so long as all the Owners are treated in a consistent manner in accordance with their interests and/or consent in writing to different treatment. Each Owner shall be bound by all actions taken by the Owner Representative in connection with indemnity claims under Article VI, and the Purchasers shall be entitled to rely on any such liability arising out of the willful misconduct action or decision of the Owner RepresentativeRepresentative in connection therewith. The Owner Representative may be changed from time to time upon the approval of holders of a majority of the Escrow Shares. In the event that the Owner Representative incurs expenses or suffers Losses which are reimbursable or indemnifiable (as the case may be) by the Owners as described in clauses (iii) and (iv) above, upon written notice by the Owner Representative to the Fund, the Fund shall amend Schedule I of the Securityholders’ Agreement to reallocate the percentage interests of the Owners in the Escrow Shares pro rata as directed by the Owner Representative so that, immediately after such reallocation, in the event of a full release of the Escrow Shares to the Owners, the Owners designated by the Owner Representative to receive the benefit of such reallocation (which are anticipated to be the Owner Representative and/or one or more affiliates thereof) would be entitled to receive an additional number of Escrow Shares having a value (based on the Market Price Per Unit as of the relevant date of such notice and the applicable Exchange Ratio) equal to the applicable amount of reimbursable expenses or indemnifiable Losses, as applicable.
Appears in 1 contract
Samples: Transaction Agreement (Iesi Corp)