Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount. (b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. (c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions. (d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably of the Equityholders hereby appoints Seller Representative to act Xxxxxx Xxxxxxxx as such Seller Guarantor’s and such Seller’s exclusive its agent and true and lawful attorney-in-fact with full power of substitution to do fact, as the Seller Representative for and on behalf of the Equityholders to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims by Indemnified Parties for indemnification pursuant to this Agreement, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Parties against any Equityholders or by any such Seller Guarantor Equityholders against any Indemnified Parties or any dispute between any Indemnified Parties and any such Seller any Equityholders, in each case relating to this Agreement or the transactions contemplated hereby, and to take all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: other actions that are either (i) receiving and disbursing payments to be made hereunder; necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing or (ii) receiving notices and communications pursuant to this Agreement and specifically mandated by the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments terms of this Agreement. Such agency may be changed by the Equityholders from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, waivers of conditions and obligations under this Agreement and however, that the Seller Ancillary Agreements; (vii) asserting claims for or defending claims Representative may not be removed unless holders of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions a majority of the Seller Guarantor Shares immediately prior to the Closing agree to such removal and to the Sellers under this Agreement and identity of the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementssubstituted agent. Notwithstanding the foregoing, a vacancy in the position of Seller Representative may be filled by the holders of a majority of the Seller immediately prior to the Closing. No bond shall be required of the Seller Representative, and the Seller Representative shall have no obligation not receive any compensation for its services. Notices or communications to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in or from the Seller Ancillary Agreements Representative shall constitute notice to or from the Equityholders
(b) The Seller Representative shall not be liable to the Equityholders for any act done or omitted hereunder as Seller Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties shall indemnify the Seller Representative Engagement Agreementand hold the Seller Representative harmless against any loss, and for purposes of clarity, there are no obligations liability or expense incurred without gross negligence or bad faith on the part of the Seller Representative and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties hereunder, including the reasonable fees and expenses of any ancillary agreement, schedule, exhibit or legal counsel retained by the Company Disclosure LetterSeller Representative. A decision, act, consent or instruction of the Seller Representative Representative, including an amendment, alteration or modification of this Agreement pursuant to Section 11.01, shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Equityholders and shall be final, binding and conclusive upon the Seller Guarantors Equityholders; and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Buyer may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Equityholders. Buyer is hereby relieved from any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or person for any reason and survive the deathacts done by it in accordance with such decision, incompetenceact, bankruptcy consent or liquidation instruction of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement, Stock Purchase Agreement (Cvent Inc)
Seller Representative. (a) Each Seller Guarantor hereby authorizes, directs and each Seller irrevocably appoints Seller Representative Katsujin Xxxxx Xxxx to act as such Seller Guarantor’s sole and such Seller’s exclusive agent and true and lawful agent, attorney-in-fact with full power of substitution to do on behalf and representative of such Seller Guarantor (the “Seller Representative”), and such authorized and directs the Seller Representative to (i) take any and all thingsactions (including without limitation executing and delivering any documents, including executing incurring any costs and expenses for the account of such Seller and making any and all documents, determinations) which may be necessary, convenient required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted by this Agreement to be made hereunder; taken by such Seller or Sellers, (ii) receiving notices exercise such other rights, power and communications pursuant to this Agreement authority as are authorized, delegated and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group hereunder in connection with the transactions contemplated hereby, (iii) exercise such rights, power and authority as are coupled with an interest incidental to the foregoing, and will (iv) give and receive any notices, consents, waivers or other communications required or permitted to be irrevocable given under the terms of this Agreement. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by any the Seller Guarantor or any Seller in any manner or for any reason and survive the deathRepresentative consistent therewith, incompetence, bankruptcy or liquidation of any Seller and shall be absolutely and irrevocably binding on any successor theretoeach Seller, as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Seller’s individual capacity. The Seller Representative hereby acknowledges and shall survive accepts the delivery of an assignment by any foregoing authorization and appointment and agrees to serve as the Seller of Representative in accordance with the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountAgreement.
(b) If The Seller Representative shall serve as Seller Representative until his resignation, removal from office, incapacity or death; provided, however, that the Seller Representative shall not have the right to resign without (A) prior written notice to Sellers and (B) picking a successor reasonably satisfactory to Purchaser to serve until a successor thereto is elected by Sellers. The Seller Representative may be removed at any time there is more than one Person appointed and a successor representative, reasonably satisfactory to serve as the Seller RepresentativePurchaser, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will may be binding upon the Seller Guarantorsappointed, the pursuant to written action by Sellers and the Seller Representativeswho, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror date of removal, hold at least one Share. No appointment of a successor shall be effective unless such successor agrees in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made be bound by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination terms of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read shall be permitted to retain counsel, consultants and understands this other advisors at its own expense and shall promptly notify Purchaser after retaining any such person.
(d) Notwithstanding any notice received by Purchaser to the contrary (except any notice for the appointment of a successor Seller Representative approved by Purchaser in accordance with Section 13.189.7(b) above), Purchaser (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to Sellers with respect to, and xxxxxx accepts such appointment. Certain shall be indemnified by Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with from and against all liability arising out of, actions, decisions and determinations of the Seller Representative and (ii) shall be entitled to provide direction to assume that all actions, decisions and determinations of the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement are fully authorized by Sellers.
(such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). e) The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required liable to expend or risk its own funds or otherwise incur any financial liability in Sellers for the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement act or the transactions contemplated hereby failure to act so long as he acted or thereby. Furthermore, the Seller Representative shall not be required failed to take any action unless the Seller Representative has been provided with funds, security or indemnities which, act in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative good faith in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature what he reasonably believed by it to be genuine, the scope of his authority and (iii) for a purpose which he reasonably assume that a signatory has proper authorization believed to sign on behalf be in the best interests of the applicable Seller or other partySellers.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Recruit Co., Ltd.)
Seller Representative. (a) Each Seller Guarantor By their execution of this Agreement and each Seller the transfer and delivery of their Certificates, and/or their acceptance of any consideration pursuant to this Agreement the Sellers hereby irrevocably appoints (subject only to Section 1.6(d)) appoint the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful the representative, attorney-in-fact and agent of the Sellers in connection with full power of substitution the transactions contemplated by this Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement or the Escrow Agreement. In connection therewith, the Seller Representative is authorized to do on behalf of such Seller Guarantor or refrain from doing all further acts and such Seller any and all things, including executing any and to execute all documentssuch documents as the Seller Representative shall deem necessary or appropriate, which may be necessaryand shall have the power and authority to:
(i) act for some or all of the Sellers with regard to all matters pertaining to this Agreement or the Escrow Agreement;
(ii) act for the Sellers to transact matters of litigation with regard to all matters pertaining to this Agreement or the Escrow Agreement;
(iii) execute and deliver all amendments, convenient waivers, ancillary agreements, certificates and documents that the Seller Representative deems necessary or appropriate to facilitate in connection with the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to transactions contemplated by this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, including delivering any update to or correction, amendment or modification of the Seller Representative Engagement Agreement Closing Date Allocation Schedule permitted by Section 1.8(a);
(iv) receive funds, make payments of funds, and the Seller Ancillary Agreements. Notwithstanding the foregoinggive receipts for funds;
(v) do or refrain from doing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, any further act or deed that the Seller Representative deems necessary or appropriate in the Seller Representative’s discretion relating to the subject matter of this Agreement or the Escrow Agreement, in each case as fully and completely as the Seller Ancillary Agreements Sellers could do if personally present;
(vi) give and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit receive all notices required to be given or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and received by the Sellers under this Agreement, the Seller Ancillary Agreements, Agreement or the Escrow Agreement;
(vii) give any written direction to the Escrow Agent on behalf of any Seller;
(viii) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court orders with respect to claims for indemnification made by the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed Buyer under Article V; and
(ix) receive service of process in writing, and Acquiror, its Affiliates and Representatives may rely upon connection with any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) claims under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to and/or the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountAgreement.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act All decisions and actions of the Seller Representative will require the act of a majority on behalf of the Seller Representatives which will Sellers shall be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, deemed to be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination facts ascertainable outside of this Agreement and shall be binding upon all Sellers, and no Seller shall have the Escrow Agreementright to object, dissent, protest or otherwise contest the same.
(c) The Seller Representative acknowledges that it has read shall act for the Sellers on all of the matters set forth in this Agreement and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Escrow Agreement in the manner the Seller Representative believes to provide direction be in the best interest of the Sellers. The Seller Representative is authorized to act on behalf of the Sellers notwithstanding any dispute or disagreement among the Sellers. In taking any action as Seller Representative, the Seller Representative in connection with its services under this Agreementmay rely conclusively, the Escrow Agreementwithout any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Seller Ancillary Agreements Representative reasonably believes to be authorized thereunto. The Seller Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Seller Representative Engagement Agreement (shall not be liable to any Seller for anything done, omitted or suffered in good faith by the Seller Representative based on such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)advice. The Seller Representative undertakes to perform such duties and its members, managers, directors, officers, contractors, agents only such duties as are specifically set forth in this Agreement and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action implied covenants or omission by the Seller Representative in connection with obligations shall be read into this Agreement against the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Representative shall not have any liability to any of the Sellers will indemnify, defend and hold harmless the for any act done or omitted hereunder as Seller Representative Group while acting in good faith. The Seller Representative shall be indemnified by the Sellers from and against any and all Damagesloss, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs liability or expense incurred in good faith on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) and arising out of or in connection with the acceptance or administration of the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionshereunder.
(d) In the event the Seller Representative becomes unable to perform the Seller Representative’s responsibilities hereunder or resigns from such position, the Sellers (acting by a written instrument signed by Sellers who held, as of immediately prior to the Closing, a majority (by voting power) of the then outstanding Company Shares) shall select another representative to fill the vacancy of the Seller Representative, and such substituted representative shall be deemed to be the Seller Representative for all purposes of this Agreement. The Seller Representative may be removed only upon delivery of written notice to the Buyer signed by Sellers who, as of immediately prior to the Closing, held a majority (by voting power) of the then outstanding Company Shares; provided that no such removal shall be effective until such time as a successor Seller Representative shall have been validly appointed hereunder. Any substituted representative shall provide the Buyer prompt written notice of any such representative, including his, her or its identity and address.
(e) For all purposes of this Agreement:
(i) the Buyer shall be entitled to: (i) to rely conclusively on the instructions and decisions of the Seller Representative as to the settlement of any disputes or claims under this Agreement or the Escrow Agreement, or any other actions required or permitted to be taken by the Seller Representative hereunder, and no party hereunder or any Seller shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the Payment Schedule, instructions or decisions of the Seller Representative;
(ii) rely upon the provisions of this Section 1.6 are independent and severable, are irrevocable (subject only to Section 1.6(d)) and coupled with an interest and shall be enforceable notwithstanding any signature believed rights or remedies that any Seller may have in connection with the transactions contemplated by it to be genuine, and this Agreement; and
(iii) reasonably assume that the provisions of this Section 1.6 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Seller, and any references in this Agreement to a signatory has proper authorization Seller shall mean and include the successors to sign on behalf the rights of the each applicable Seller hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or other partyotherwise.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Eleven Biotherapeutics, Inc.)
Seller Representative. (a) Each Seller Guarantor hereby constitutes and each Seller irrevocably appoints Seller Representative OneBeacon LLC to act as its representative for all purposes under this Agreement and the Ancillary Agreements (OneBeacon LLC, in such capacity, the “Seller Guarantor’s Representative”), and the Seller Representative hereby accepts such Seller’s exclusive agent appointment. Each Seller hereby irrevocably constitutes and appoints, with full power of substitution, the Seller Representative as its true and lawful attorney-in-fact fact, with full power and authority in such Seller’s name, to take all actions required or permitted to be taken hereunder or under the Ancillary Agreements, and to otherwise act on behalf of, and to bind, each Seller for all purposes under this Agreement or under the Ancillary Agreements, including with respect to the receipt of proceeds or any other receivables hereunder, administering any indemnification matter on behalf of Sellers, including agreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters. Each Seller acknowledges that this Section 11.8 is intended to promote the efficient negotiation and handling of matters arising under or in connection with this Agreement and the Ancillary Agreements. Buyer will be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Seller Representative on behalf of Sellers and will not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Seller Representative. Without limiting the generality of the foregoing, each Seller hereby irrevocably constitutes and appoints, with full power of substitution substitution, the Seller Representative as its true and lawful attorney-in-fact, with full power and authority in such Seller’s name, place and stead, to do on behalf of such execute, certify, acknowledge, deliver, file and record all agreements, certificates, instruments and other documents and any amendment thereto, and take any other action which the Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient Representative deems necessary or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and in connection with Sellers’ or the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and Representative’s obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations The appointment of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of by each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement Person’s attorney-in-fact will be considered deemed to be a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are power coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation dissolution of any Seller giving such power. The arrangements between Sellers and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller Representative set forth in this Section 11.8 are made in consideration of the whole or any fraction Seller Representative’s acceptance of his, her or its interest in appointment as the Adjustment Escrow AmountSeller Representative.
(b) If at any time there is more than one Person appointed to serve as In the event that the Seller RepresentativeRepresentative becomes unable to perform its responsibilities hereunder, any act Sellers shall promptly select another representative to fill such vacancy and such substituted representative shall be deemed to be the Seller Representative for all purposes of this Agreement and the Ancillary Agreements and the document delivered pursuant hereto and thereto.
(c) All actions, decisions and instructions of the Seller Representative will require in accordance with the act power and authority granted to it under the terms of a majority of this Agreement and the Seller Representatives which Ancillary Agreements will be conclusive and binding upon the Seller Guarantors, the all Sellers and will be deemed authorized, approved, ratified and confirmed by Sellers, having the Seller Representativessame force and effect as if performed pursuant to the direct authorization of such Sellers, and upon such act by a majority no Seller will have any cause of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as action against the Seller Representative for any reasonaction taken, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission instruction given by the Seller Representative in connection with under this Agreement or under the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall provisions of this Section 11.8 will be entitled to: (i) rely binding upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuinelegal representatives, and (iii) reasonably assume that successors of each Seller, and any references in this Agreement to a signatory has proper authorization Seller will mean and include the successors to sign on behalf of the applicable Seller or other partysuch Person’s rights hereunder.
Appears in 2 contracts
Samples: Purchase Agreement (Tower Group, Inc.), Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Seller Representative. (a) Each Seller Guarantor By approving this Agreement and the transactions contemplated hereby, each Seller shall have irrevocably appoints authorized and appointed Dangroup ApS as the initial Seller Representative. The Seller Representative to will act as such Seller GuarantorPerson’s representative and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do act on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant Person with respect to this Agreement and the Promissory Notes and to take any and all actions and make any decisions required or permitted to be taken by Seller Ancillary Agreements; Representative pursuant to this Agreement or the Promissory Notes, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.5;
(iii) administering agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer pursuant to Article VII and Article IX;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VII and Article IX;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the Seller any Ancillary Agreements, Document (including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(bPromissory Notes); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; ;
(vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Seller Ancillary Agreements; Promissory Notes);
(vii) asserting claims for engage, employ or defending claims of indemnification under Article 8 appoint any agents or representatives (including attorneys, accountants and resolving, settling or compromising any such claimconsultants) to assist Seller Representative in complying with its duties and obligations; and
(viii) taking any other take all actions necessary or appropriate in the good faith judgment of Seller Representative for the accomplishment of the foregoing. Holdings and Buyer shall be entitled to deal exclusively with Seller Guarantor and the Sellers under Representative on all matters relating to this Agreement (including Article IX) and the Seller Ancillary Agreements; and shall be entitled to rely conclusively (ixwithout further evidence of any kind whatsoever) performing all acts, as contemplated by on any document executed or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation purported to act be executed on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the any Seller Ancillary Agreements and in the by Seller Representative Engagement AgreementRepresentative, and for purposes on any other action taken or purported to be taken on behalf of clarityany Seller by Seller Representative, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit as being fully binding upon such Person. Notices or the Company Disclosure Letter. A decision, act, consent communications to or instruction of from Seller Representative shall constitute notice to or from each of the Sellers. Any decision or action by Seller Representative hereunder, including any agreement between Seller Representative and Buyer or Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision for or action of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the each such Person. No Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability the right to any Seller Guarantor object to, dissent from, protest or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to otherwise contest the Seller Guarantors and the Sellerssame. The powersprovisions of this Section, immunities including the power of attorney granted hereby, are independent and rights to indemnification granted to the Seller Representative Group severable, are irrevocable and coupled with an interest and will shall not be irrevocable terminated by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation act of any Seller and shall be binding on any successor theretoone or Sellers, and shall survive the delivery or by operation of an assignment Law, whether by any Seller of the whole death or any fraction of his, her or its interest in the Adjustment Escrow Amountother event.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the The Seller Representative will require the act of a majority of the Seller Representatives which will may be binding upon the Seller Guarantorsremoved, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, etc. as provided in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b11.1(b).
(i) as though such act were the unanimous act of all Seller Representatives. Any The Seller Representative may resign as a at any time.
(ii) The Seller Representative at may be removed for any time reason or no reason by the vote or written notice delivered to the Seller Guarantors, consent of a majority in interest of the Sellers and according to Acquiror. If at any time there is each Seller’s Pro Rata Share (the “Majority Holders”); provided, however, in no Person acting as the event shall Seller Representative for any reason, resign or be removed without the Seller Guarantors and the Sellers will promptly designate Majority Holders having first appointed a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of who shall assume such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers duties immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive upon the resignation or removal of Seller Representative.
(iii) In the event of the death, incapacity, resignation or removal of Seller Representative, a new Seller Representative shall be appointed by the vote or any member written consent of the Advisory Group Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Seller Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Buyer; provided, that until such notice is received, Buyer and the Closing and/or any termination Target Company shall be entitled to rely on the decisions and actions of this Agreement and the Escrow Agreementprior Seller Representative as described in Section 10.1(a) above.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointmentshall act as a fiduciary with fiduciary duties to the Sellers. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with If the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member has a personal conflict of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind interest with respect to any action action, decision or omission determination to be made by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from must notify the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall not be entitled to: liable to the Sellers for actions taken pursuant to this Agreement or the Promissory Notes, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (i) rely upon it being understood that any act done or omitted pursuant to the Payment Scheduleadvice of counsel, accountants and other professionals and experts retained by Seller Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (ii) rely upon in accordance with their Pro Rata Shares), indemnify and hold harmless Seller Representative from and against, compensate it for, reimburse it for and pay any signature believed by and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Seller Representative under this Agreement and the Promissory Notes (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it to be genuine, and (iii) reasonably assume is finally adjudicated that a signatory has proper authorization Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Seller Representative, Seller Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to sign on behalf of such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied from the applicable Seller or other partySellers, severally and not jointly (in accordance with their Pro Rata Shares).
Appears in 2 contracts
Samples: Equity Purchase Agreement (AIRO Group, Inc.), Equity Purchase Agreement (AIRO Group, Inc.)
Seller Representative. (a) Each Seller Guarantor By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints Xxxxx Xxx as the Seller Representative Representative, and in such capacity, to act as such Seller Guarantor’s and such Seller’s exclusive agent and be the true and lawful agent and attorney-in-fact of such Seller with full power powers of substitution to do act in the name, place and stead of thereof with respect to the performance on behalf of such Seller Guarantor under the terms and provisions of this Agreement and the Transaction Documents, as the same may be from time to time amended, and to do or refrain from doing all such Seller any further acts and all things, including executing any and to execute all documentssuch documents on behalf of such Seller, which may be necessaryif any, convenient as the Seller Representative will deem necessary or appropriate to facilitate the consummation in connection with any of the Stock Purchasetransactions contemplated under this Agreement or any of the Transaction Documents, including: (i) receiving and disbursing payments agree upon or compromise any matter related to be made hereunderthe calculation of any adjustments to the Purchase Price under this Agreement; (ii) receiving notices and communications pursuant to this Agreement and direct the Seller Ancillary Agreementsdistribution of the Purchase Price; (iii) administering act for Sellers with respect to all indemnification matters referred to in this Agreement and the Seller Ancillary AgreementsAgreement, including the initiation and resolution right to compromise on behalf of Sellers any disputes indemnification claim made by or claimsagainst Sellers, if any; (iv) making determinations to settle any dispute act for Sellers with respect to the purchase price adjustments contemplated by Section 2.3(b)all post-Closing matters; (v) resolvingterminate, settling amend or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12waive any provision of this Agreement; (vi) agreeing to amendments employ and obtain the advice of this Agreementlegal counsel, waivers of conditions accountants and obligations under this Agreement and other professional advisors as the Seller Ancillary AgreementsRepresentative, in the Seller Representative’s sole discretion, deems necessary or advisable in the performance of his duties as the Seller Representative and to rely on their advice and counsel; (vii) asserting claims for incur and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or defending claims of in any way relating to such transaction or any indemnification under Article 8 and resolvingclaim, settling whether incurred prior or compromising any such claimsubsequent to Closing; (viii) taking receive all or any other actions portion of the Purchase Price and to distribute the same; (ix) distribute the Seller Guarantor and the Sellers Representative Reserve; (x) sign any releases or other documents with respect to any dispute or remedy arising under this Agreement and or the Seller Ancillary AgreementsTransaction Documents; and (ixxi) performing all acts, as contemplated by do or deemed advisable by refrain from doing any further act or deed on behalf of Sellers which the Seller Representative deems necessary or appropriate, in connection his sole discretion after consultation with Xxxxxxx Xxxx, relating to the subject matter of this Agreement, the Escrow Agreement, Agreement as fully and completely as any Seller could do if personally present and acting. The Seller Representative hereby accepts his appointment and authorization as the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow under this Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations .
(b) The appointment of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are deemed coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor theretoirrevocable, and shall survive any other Person, including Buyer and the delivery of an assignment by Company may conclusively and absolutely rely, without inquiry, upon any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act actions of the Seller Representative as the acts of Sellers hereunder or any Transaction Document to which they are a party. The Seller Representative will require the act of a majority for Sellers on all of the Seller Representatives which will be binding upon matters set forth in this Agreement in the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as manner the Seller Representative for any reasonbelieves to be in the best interest of Sellers, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as but the Seller Representative and notify Acquiror in writing will not be responsible to Sellers for any loss or damage that any Seller may suffer by reason of such determination. Following the time that Acquiror is notified that performance by the Seller Representative has resigned and until of such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services ’s duties under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action other than loss or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting damage arising from the Seller Representative’s Fraudfraud, gross negligence or willful misconductmisconduct in the performance of the Seller Representative’s duties under this Agreement. The Seller Guarantor Sellers do hereby jointly and Sellers will indemnify, defend severally agree to indemnify and hold harmless the Seller Representative Group harmless from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs Losses reasonably incurred or suffered as a result of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out performance of or in connection with the Seller Representative’s execution and duties under this Agreement. The Seller Representative will not be entitled to any fee, commission or other compensation for the performance of this Agreementhis services hereunder, but will be entitled to the Escrow Agreementpayment from Sellers on a pro rata basis of all expenses incurred as the Seller Representative, which payment may be recovered by the Seller Representative Engagement Agreement and from the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that Reserve.
(c) If the Seller Representative shall not be required to expend or risk its own funds die, become disabled, resign or otherwise incur be unable to fulfill his responsibilities as agent of Sellers, then Sellers shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter (but in any financial liability event within two (2) Business Days after such appointment), shall notify Buyer in writing of the exercise or performance identity of such successor; provided, that if for any reason no successor has been appointed within such ten (10) day period, then any Seller will have the right to petition a court of its powerscompetent jurisdiction for appointment of a successor to the Seller Representative. Any such successor shall be appointed by the written consent of Sellers, rights, duties or privileges or pursuant to and any successor so appointed shall become the “Seller Representative” for purposes of this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The All notices or other communications required to be made or delivered by Buyer to Sellers shall be made to the Seller Representative for the benefit of Sellers. All notices or other communications required to be made or delivered by Sellers shall be entitled to: (i) rely upon made by the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other partyRepresentative.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Cinedigm Corp.), Equity Purchase Agreement (Cinedigm Corp.)
Seller Representative. (a) Each Seller Guarantor and each hereby appoints GarMark Advisors II L.L.C. as the “Seller irrevocably appoints Seller Representative Representative” to act as such Seller Guarantor’s and such Seller’s exclusive the agent and true and lawful attorney-in-fact of the Sellers with the full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving to resolve all questions, disputes, conflicts and disbursing payments to be made hereunder; controversies concerning Losses as provided in this ARTICLE 11, (ii) receiving notices to execute and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreementsenter into, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments of amounts held under the Escrow Agreement in the Seller Ancillary Agreements connection with Losses as provided herein and in the Seller Representative Engagement Agreementtherein, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for (iii) to negotiate and/or settle all of the Seller Guarantors and the Sellers claims under this Agreement, the Seller Ancillary Agreements, Agreement or the Escrow Agreement, (iv) to receive from the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and Buyer monies payable to the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to accordance with the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement.
, (cv) The Seller Representative acknowledges that it has read to otherwise take such actions (or refrain from taking actions) and understands this Section 13.18, and xxxxxx accepts execute such appointment. Certain Sellers have entered into an engagement agreement (documents on the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative Sellers’ behalf in connection with its services under this Agreement, and the Escrow Agreement, as the Seller Ancillary Agreements Representative, in its sole discretion, deems proper and (vi) to perform all of the functions of the Seller Representative Engagement under this Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermoreforegoing notwithstanding, the Seller Representative shall not be required have the power to take negotiate and/or settle any action claims under this Agreement in which a single Seller is liable due to a breach by such Seller unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, received the prior written consent of such Seller to negotiate and/or settle such claim. The Buyer and the Escrow Agent are sufficient entitled to protect rely on the acts and agreements of the Seller Representative against as the costs, expenses acts and liabilities which may be incurred by agreements of the Seller Representative in performing such actions.
(d) Sellers. The Seller Representative shall be entitled to: to retain counsel and to incur such reasonable expenses (iincluding court costs and reasonable attorney’s fees and expenses) rely upon as the Payment Schedule, (ii) rely upon any signature believed by it Seller Representative deems to be genuinereasonably necessary or appropriate in connection with its performance of its obligations under this Agreement and the Escrow Agreement, and (iii) reasonably assume that a signatory has proper authorization all such fees and expenses incurred by the Seller Representative shall be borne pro rata by the Sellers based upon their respective initial economic interests in the Escrow Amount. Subject to sign on behalf and in accordance with the provisions of the applicable Escrow Agreement, the fees and expenses incurred by the Seller or other partyRepresentative pursuant to this Section 11.04 shall be paid by the Sellers directly to the Seller Representative and shall not be paid from the Escrow Fund.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Seller Representative. (a) Each Seller Guarantor and each Seller hereby irrevocably appoints the Original Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful representative, attorney-in-fact and agent, with full power of substitution to do act in the name, place and stead of such Seller with respect to the transactions contemplated by this Agreement, including the transfer of the Acquired Shares set forth on Exhibit B attached hereto next to such Seller’s name to Purchaser, in accordance with the terms and provisions of this Agreement and to act on behalf of such Seller Guarantor in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such Seller any further acts and all things, including executing in connection with any indemnification matters pursuant to ARTICLE IX, and to execute all such documents, which may be necessary, convenient as such Seller Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement, including the power:
(i) to facilitate take all action necessary or desirable in connection with the waiver of any condition to the obligations of Sellers to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the Stock Purchase, including: transactions contemplated by this Agreement (iit being understood that such Seller shall execute and deliver any such documents which the Seller Representative agrees to execute);
(iii) receiving to terminate this Agreement if Sellers are entitled to do so in accordance with the terms and disbursing payments provisions of this Agreement;
(iv) to be made hereunder; (ii) receiving give and receive all notices and communications pursuant to this Agreement and the be given or received by such Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the to receive service of process on behalf of such Seller Ancillary Agreements; in connection with any claims under this Agreement, including service of process in connection with arbitration;
(viiv) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other to take all actions of the Seller Guarantor and the Sellers under this Agreement which may be taken by such Seller and the to do or refrain from doing any further act or deed on behalf of such Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by which the Seller Representative deems necessary or appropriate in connection its sole discretion relating to the subject matter of this Agreement as fully and completely as such Seller could do if personally present; and
(vi) to act for such Seller with respect to all indemnification matters referred to in this Agreement, including the Escrow right to compromise on behalf of such Seller any indemnification claim by or against such Seller.
(b) Provided that the Seller Representative uses commercially reasonable efforts to distribute all amounts received by it hereunder to Sellers in accordance with the terms and conditions of this Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to will not be liable for any act on behalf of the Sellers, except taken or omitted by it as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers permitted under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the except if such act is taken or omitted in bad faith or by willful breach or gross negligence. The Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall will also be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed fully protected in writing, and Acquiror, its Affiliates and Representatives may rely relying upon any such decisionwritten notice, actdemand, consent certificate or instruction of Seller Representative as being document that it in good faith believes to be genuine (including facsimiles thereof). In no event shall Purchaser or the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror Company or any of its Affiliates or Representatives shall their Affiliates, have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy action taken or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment omission to act by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18Sellers agree, and xxxxxx accepts severally but not jointly, to indemnify (on a pro rata basis based upon such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”Seller’s Proportional Share) with the Seller Representative for, and to provide direction to hold the Seller Representative in connection with its services under this Agreementharmless against, the Escrow Agreementany loss, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraudexpense incurred without willful breach, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless bad faith on the part of the Seller Representative Group from and against any and all DamagesRepresentative, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of carrying out its duties under this Agreement, the Escrow Agreement, including costs and expenses of successfully defending the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such against any claim of liability with respect thereto. The Seller Representative Expenses are may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution by it in good faith and in accordance with the opinion of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellerssuch counsel. The Sellers acknowledge that the Seller Representative shall not be required entitled to expend any fees, commissions or risk its own funds other compensation for acting as the Seller Representative.
(d) If the Original Seller Representative resigns in writing as Seller Representative or otherwise incur becomes unable to serve as Seller Representative, a majority of Sellers may designate as a successor Seller Representative any financial liability other Person with the prior written consent of Purchaser (the “Successor Seller Representative”). If for any reason no Successor Seller Representative has been appointed within thirty (30) days of such resignation or inability to serve by the Original Seller Representative, then any Seller or Purchaser shall have the right to petition a court of competent jurisdiction for appointment of a Successor Seller Representative. Upon written acceptance by such Successor Seller Representative to serve as Seller Representative, such Successor Seller Representative shall thereupon succeed to and become vested with all of the powers and duties and obligations of the Original Seller Representative without further act. Notwithstanding any replacement of the Original Seller Representative hereunder, the provisions of this Section 10.16 shall continue in effect for the exercise benefit of the Original Stockholder Representative with respect to all actions taken or performance of any of its powers, rights, duties omitted to be taken by it while acting as Stockholder Representative.
(e) Purchaser shall have the right to rely upon all actions taken or privileges or omitted to be taken by the Seller Representative pursuant to this Agreement, all of which actions and omissions shall be legally binding upon Sellers. No party hereunder shall have any cause of action against Purchaser to the Escrow Agreement or extent Purchaser has relied upon decisions and actions of the transactions contemplated hereby or thereby. Furthermore, Seller Representative.
(f) The grant of authority to the Seller Representative provided for in this Section 10.16, (i) is coupled with an interest and shall not be required irrevocable and survive the death, incompetency, bankruptcy or liquidation of any of Sellers, and (ii) shall survive the Closing.
(g) All of the indemnities, immunities and powers granted to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect under this Agreement shall survive the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsClosing and/or termination of this Agreement.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 2 contracts
Samples: Share Purchase Agreement (Jinglong Group Co., Ltd.), Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Seller Representative. (a) Each Seller Guarantor Indemnifying Party, by the adoption of this Agreement, irrevocably and each Seller irrevocably appoints unconditionally authorizes the Seller Representative (i) to act take any and all additional action as such is contemplated to be taken or otherwise may be taken by or on behalf of the Indemnifying Parties by or under the terms of this Agreement, including any actions in connection with any Post-Closing Adjustment or Objection Notice contained in Section 1.7, any waivers of Closing conditions or waivers of other Indemnifying Party rights and any agreement to terminate or alter this Agreement, (ii) to take all action necessary to the defense and/or settlement of any claims for which the Indemnifying Parties may be required to indemnify Buyer pursuant to ARTICLE VIII hereof, and (iii) to give and receive all notices required to be given or received by the Indemnifying Parties under this Agreement. Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact Representative may take the foregoing actions, with full power of substitution substitution, as Seller Representative may in its sole discretion determine to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient desirable or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and any claim for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountindemnification.
(b) If at any time there is more than one Person appointed to serve as All decisions and actions by the Seller Representative, including without limitation any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as agreement between the Seller Representative and notify Acquiror in writing of such determination. Following Buyer (i) relating to the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority determination of the shares existence of any Post-Closing Adjustment or the Company Stock held by the Sellers immediately prior settlement of any disputes or disagreements with regard to any Post-Closing Adjustment pursuant to Section 1.7 or (ii) relating to the Agreement Date. The immunities defense or settlement of any claims for which the Indemnifying Parties may be required to indemnify Buyer pursuant to ARTICLE VIII hereof, shall be binding upon all Indemnifying Parties, and rights no Indemnifying Party shall have the right to indemnification shall survive object, dissent, protest or otherwise contest the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementsame.
(c) The Seller Representative acknowledges that it has read shall not have any liability to any of the parties hereto for any act done or omitted hereunder as Seller Representative while acting in good faith and understands this Section 13.18in the exercise of reasonable judgment, and xxxxxx accepts any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such appointmentgood faith. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with The Indemnifying Parties shall severally but not jointly indemnify the Seller Representative to provide direction to and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Seller Representative and arising out of or in connection with the acceptance or administration of its services duties hereunder. The Seller Representative shall be entitled to be reimbursed for reasonable expenses incurred in the performance of its duties (including, without limitation, the reasonable fees of counsel) by the Indemnifying Parties.
(d) The Seller Representative shall have reasonable access to relevant information about the Company and the reasonable assistance of the Company’s employees for purposes of performing its duties and exercising his rights hereunder; provided that the Seller Representative shall treat confidentially and not disclose any nonpublic information from or about the Company or Buyer to anyone (except on a need-to-know basis to individuals who agree to treat such information confidentially) and execute a non-disclosure agreement in the form provided by Buyer.
(e) By his, her or its adoption of this Agreement, each Indemnifying Party agrees, in addition to the foregoing, that:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any disputes or disagreements in connection with any Post-Closing Adjustments pursuant to Section 1.7 and (ii) the settlement of any claims for indemnification by Buyer pursuant to ARTICLE VIII hereof, or any other actions required or permitted to be taken by the Seller Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Seller Representative;
(ii) all actions, decisions and instructions of the Seller Representative shall be conclusive and binding upon all of the Indemnifying Parties and no Indemnifying Party shall have any cause of action against the Seller Representative for any action taken, decision made or instruction given by the Seller Representative under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action except for fraud or omission willful misconduct by the Seller Representative in connection with the Seller Representative’s services matters described in this Section 10.15;
(iii) the provisions of this Section 10.15 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Indemnifying Party may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 10.15 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Indemnifying Party, and any references in this Agreement to an Indemnifying Party shall mean and include the successors to the rights of each applicable Indemnifying Party hereunder, whether pursuant to this Agreementtestamentary disposition, the Escrow Agreement, laws of descent and distribution or otherwise.
(v) the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will shall indemnify, defend and hold harmless the Seller Representative Group and its successors and assigns from and against any and all Damagesclaims, demands, suits, actions, causes of action, losses, claimsdamages, obligations, liabilities, fees, costs, costs and expenses and other Losses (including feesattorneys’ fees and court costs) (collectively, disbursements and costs “Seller Representative Losses”) arising as a result of counsel and other skilled professionals and or incurred in connection with seeking recovery from insurers), judgments, fines any actions taken or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, omitted to be taken by the Seller Representative Engagement pursuant to the terms of this Agreement and the Seller Ancillary Agreementsor any Transaction Document, in each case, case as such Seller Representative Expenses are suffered Loss is incurred or incurredsuffered. Such Notwithstanding the foregoing, in the event it is finally adjudicated that a Seller Representative Expenses may be recovered firstLoss or any portion thereof was primarily caused by the bad faith, from any distribution gross negligence or willful misconduct of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable Seller Representative, the preceding sentence will not apply to the Sellers at amount of the time of distributionseller Representative Loss attributable to such bad faith, and second, directly from the Sellers. The Sellers acknowledge gross negligence or willful misconduct.
(f) Royston Tay hereby accepts his appointment as Seller Representative.
(g) Each party to this Agreement agrees that Royston Tay may resign as the Seller Representative shall not be required to expend at any time and in his sole discretion, provided that Shareholder Representative Services LLC or risk its own funds other individual or otherwise incur any financial liability in entity mutually agreed on by (i) the exercise or performance Buyer, and (ii) the Sellers representing at least the majority of any of its powersthe aggregated Pro Rata Portions, rights, duties or privileges or pursuant has been appointed as the Seller Representative and made a party to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf [Remainder of the applicable Seller or other party.page intentionally left blank]
Appears in 2 contracts
Samples: Share Purchase and Sale Agreement, Share Purchase and Sale Agreement (Zendesk, Inc.)
Seller Representative. (a) Each Sellers hereby designate IODA S.A. to serve as the sole and exclusive representative of Sellers (the “Seller Guarantor Representative”) with respect to those provisions of this Agreement and each any Ancillary Agreement that contemplate or permit action by the Seller irrevocably appoints Representative. The appointment of the Seller Representative is coupled with an interest and shall be irrevocable by Sellers for any reason. The Seller Representative hxxxxx accepts its appointment as representative of Sellers.
(b) In addition to act the other rights and authority granted to the Seller Representative elsewhere in this Agreement, Sellers collectively and irrevocably constitute and appoint the Seller Representative as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful their agent, attorney-in-fact and representative with full power powers of substitution to act in the name, place and stead of Sellers to act from and after the date hereof and to do on behalf of such Seller Guarantor and such Seller any and all things, including executing things and execute any and all documents, documents which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasetransactions contemplated by this Agreement and any Ancillary Agreement, including: (i) receiving execution of the documents and disbursing payments certificates pursuant to be made hereunderthis Agreement and the any Ancillary Agreements; (ii) receiving receipt and forwarding of notices and communications pursuant to this Agreement and the Seller any Ancillary Agreements; (iii) administering administration of the provisions of this Agreement and the Seller any Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations giving or agreeing to, on behalf of all Sellers or any Seller, any and all consents, waivers, amendments or modifications deemed by the Seller Representative, in its reasonable and good faith discretion, to settle be necessary or appropriate under this Agreement or any dispute with respect to Ancillary Agreement and the purchase price adjustments contemplated by Section 2.3(b)execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) resolving, settling amending this Agreement or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12any Ancillary Agreements; (vi) agreeing to amendments negotiating and compromising, on behalf of this Agreementeach Seller, waivers of conditions any dispute that may arise under, and obligations under exercising or refraining from exercising any remedies available under, this Agreement and the Seller or any Ancillary AgreementsAgreement; (vii) asserting claims for engaging, and paying fees relating to, attorneys, accountants, agents or defending claims consultants on behalf of indemnification under Article 8 each Seller in connection with this Agreement or any Ancillary Agreement; and resolving, settling or compromising any such claim; (viii) taking any other all actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by necessary or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, appropriate in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations judgment of the Seller Representative in for the accomplishment of any ancillary agreement, schedule, exhibit or of the Company Disclosure Letter. foregoing.
(c) A decision, act, consent or instruction of the Seller Representative shall constitute a decision for of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingeach Seller, and Acquiror, its Affiliates and Representatives Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have every Seller. Purchaser is hereby relieved from any liability to any Seller Guarantor Person (including Sellers and their respective Affiliates) for any acts done by it in accordance with such decision, act, consent or any Seller as a result instruction of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the SellersRepresentative. The powers, immunities and rights Notices or communications to indemnification granted to or from the Seller Representative Group are coupled with an interest and will be irrevocable by any shall constitute notice to or from each Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation purposes of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act this Agreement. All acts of the Seller Representative will require the act hereunder in its capacity as such shall be deemed to be acts on behalf of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act Sxxxxxx. The service by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reasonshall be without compensation. Each Seller hereby consents and agrees to all actions or inactions taken or omitted to be taken in good faith by the Seller Representative under this Agreement and hereby agrees to indemnify and hold harmless, jointly and severally, the Seller Guarantors Representative from and the Sellers will promptly designate a new Person against all damages, losses, liabilities, charges, penalties, costs and expenses (including court costs and legal fees and expenses) incurred or suffered by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror acting in writing of such determination. Following the time that Acquiror is notified capacity, provided that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified was acting in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementgood faith.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 2 contracts
Samples: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Seller Representative. (a) Each The Seller Guarantor and each Seller irrevocably hereby appoints the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive the representative, agent and true and lawful attorney-in-fact with full power of substitution to do on behalf Seller and each securityholder of such Seller Guarantor and such Seller any and for all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative purposes in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyhereby. In addition, by voting in favor of the adoption of this Agreement, the approval of the principal terms hereof, and the consummation of the transaction or participating in the transaction and/or receiving the benefits thereof, including the right to receive the consideration payable in connection herewith, each securityholder of Seller shall be final, binding and conclusive upon deemed to have approved the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingdesignation of, and Acquirorhereby designates, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Shareholder Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve Services LLC as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any The Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)time. The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraudbad faith, gross negligence or willful misconduct. The Seller Guarantor and Sellers the Seller’s securityholders will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damageslosses, lossesliabilities, damages, claims, liabilitiespenalties, fines, forfeitures, actions, fees, costs, costs and expenses (including fees, disbursements the fees and costs expenses of counsel and other skilled professionals experts and in connection with seeking recovery from insurers)their staffs and all expense of document location, judgments, fines or amounts paid in settlement duplication and shipment) (collectively, the “Seller Representative ExpensesLosses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the Escrow Agreementevent that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Seller Representative, the Seller Representative Engagement Agreement and will reimburse the applicable Seller Ancillary Agreements, in each case, as or Seller securityholder the amount of such Seller indemnified Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable Loss to the Sellers at the time of distributionextent attributable to such bad faith, and second, directly from the Sellersgross negligence or willful misconduct. The Sellers acknowledge that In no event will the Seller Representative shall not be required to expend or risk advance its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Sellers or otherwise. The foregoing indemnities will survive the resignation or removal of the Seller Representative or other partythe termination of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Synacor, Inc.), Asset Purchase Agreement (Synacor, Inc.)
Seller Representative. (a) Each Seller Guarantor hereby appoints Xxxxx Xxxxxxx or Xxxxx Xxxxxxxx as his, her or its representative to receive and provide notices under this Agreement, whether from the Purchaser or otherwise, and including any notice relating to indemnification or payments or disputes arising hereunder. The Seller Representative shall have the authority, both prior to and after the Closing Date, to, subject to the terms of this Agreement, make all decisions regarding any and all matters related to this Agreement, including, but not limited to, resolution of claims for Indemnity Losses, receipt of any funds due Sellers and, subject to the terms of this Agreement, decisions related to the Lower Presidio/St. Helens Projects, claims and/or litigation or arbitration including, but not limited to, pursuing, settling or compromising all such clams, litigation or arbitration.
(b) The Seller Representative may be changed by a majority vote of the Sellers from time to time. In determining the outcome of the vote, Sellers shall have the number of votes corresponding to their percentage ownership of the Company immediately prior to the closing of this transaction. The change shall be effective upon written notice to Purchaser signed by at least a majority of the Sellers.
(c) The Seller Representative has the unrestricted right, power, authority and capacity to act for and bind each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful their attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute attorney with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant all matters relating to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement Note and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement any Related Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of the Seller Representative Representative, including but not limited to an amendment, extension or waiver of this Agreement, the Note or any Related Agreement, shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors Sellers. Said appointment shall be considered as coupled with an interest and Sellers irrevocable until all performance and their successors as if expressly ratified and confirmed in writingobligations under this Agreement, the Note, and Acquiror, its Affiliates and Representatives the Related Agreements have been fulfilled. The Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities Purchaser shall be obligated to communicate and rights negotiate with the Seller Representative with respect to indemnification granted all matters reserved to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsSection 10.16.
(d) The Seller Representative shall not have any liability for any action taken or suffered by him or omitted hereunder as Seller Representative while acting in good faith in the absence of gross negligence. The Seller Representative may, in all questions arising hereunder, rely on the advice of counsel and the Seller Representative shall not be entitled to: (i) rely upon liable to the Payment ScheduleSellers for anything done, (ii) rely upon any signature believed omitted or suffered in good faith in the absence of gross negligence by it the Seller Representative based on such advice. The Seller Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of read into this Agreement against the applicable Seller or other partyRepresentative.
Appears in 2 contracts
Samples: Share Purchase Agreement (Great Lakes Dredge & Dock CORP), Share Purchase Agreement (Great Lakes Dredge & Dock CORP)
Seller Representative. (a) Each Seller Guarantor Concurrently with the Effective Time, each NorthStar stockholder shall, as a condition to his/her participation in the NorthStar Merger and each Seller irrevocably appoints Seller Representative receipt of the Consideration after the Closing, be deemed to appoint Xxxxxx X. Xxxxxx to act as a representative for such NorthStar stockholder (“Seller Guarantor’s Representative”), and Xxxxxx X. Xxxxxx hereby accepts such Seller’s exclusive agent appointment. Seller Representative shall have the authority to execute any and true all instruments and lawful attorney-in-fact with full power of substitution to do other documents concerning the Contemplated Transactions on behalf of such Seller Guarantor the NorthStar stockholders and such Seller to do any and all thingsother acts or things on behalf of the NorthStar stockholders, including executing any and all documents, which Seller Representative may deem necessary or advisable on behalf of the NorthStar stockholders or which may be necessary, convenient required by this Agreement or appropriate to facilitate the NorthStar Closing Documents in connection with the consummation of the Stock PurchaseContemplated Transactions. Without limiting the generality of the foregoing, including: Seller Representative shall have full and exclusive authority to:
(ia) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute agree with Buyer with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling any matter or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated thing required by or deemed advisable necessary by the Seller Representative in connection with this Agreement or the NorthStar Closing Documents, including without limitation any amendments thereto;
(b) give and receive notices on behalf of the NorthStar stockholders, except as to the notices referenced in Sections 2.5(e), 2.6 and 2.7 of this Agreement;
(c) generally 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 necessary or advisable by Seller Representative in connection with this Agreement or the NorthStar Closing Documents;
(d) take all actions necessary or desirable in connection with the operation of this Agreement or the Escrow Agreement, including enforcement of amounts due NorthStar stockholders under the Escrow Agreement and defense and/or settlement of any indemnification or other claims made by Indemnified Persons pursuant to Section 9 of this Agreement or the Escrow Agreement; and
(e) retain attorneys, accountants and other professionals to provide services to the Seller Representative in fulfillment of his obligations hereunder and as otherwise deemed appropriate in connection with the Closing of the Contemplated Transactions or related matters arising thereafter, including but not limited to issues involving the Escrow Agreement. All decisions by Seller Representative shall be binding upon each NorthStar stockholder. The NorthStar stockholders shall not have any right to object, dissent, protest, or otherwise contest Seller Representative’s decisions. Buyer shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or document received by or from Seller Representative and any action taken or decision made by Seller Representative on behalf of any NorthStar stockholder. If Xxxxxx X. Xxxxxx resigns or becomes unable to perform his duties under this Section 10.16, NorthStar shall promptly select a new Seller Representative and such new Seller Representative shall promptly execute and deliver to Buyer a supplement to this Agreement agreeing to the terms of this Section 10.16. No compensation shall be paid to the Seller Representative for serving in this capacity; provided, however, that if the Seller Representative incurs out-of-pocket expenses in connection herewith, the Seller Representative shall be entitled to reimbursement of all such expenses. The Seller Representative shall maintain (at the offices of NorthStar) invoices and other evidences of the expenses reimbursed. Any payments due to NorthStar stockholders under the Escrow Agreement shall first be applied to reimburse the Seller Representative for his out-of-pocket expenses, upon notice delivered to Escrow Agent of the amount to be reimbursed. Except as to the obligations specifically required of the Seller Representative under this Agreement and the Escrow Agreement, the Seller Representative Engagement Agreement and shall not be responsible for the Seller Ancillary Agreements. Notwithstanding obligations of the foregoingAcquired Companies or be obligated to the Buyer for Damages, except to the extent the Seller Representative shall have no obligation to act on behalf is also a stockholder of the SellersNorthStar and except for his bad faith, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit gross negligence or the Company Disclosure Letterwillful conduct. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall not be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror liable to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind NorthStar stockholders with respect to any action taken or omission suffered by the Seller Representative him in connection with the Seller Representative’s services pursuant reliance upon any notice, direction, instruction, consent or statement or other paper or document believed by him to this Agreementbe genuine and duly authorized, the Escrow Agreementnor for anything except his own willful conduct, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event bad faith or gross negligence. All conduct of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend undertaken in good faith and he shall not, as the result of his acting as Seller Representative, be responsible for the validity, enforceability or risk its own funds or otherwise incur any financial liability in the exercise or performance collectibility of any of its powers, rights, duties or privileges or pursuant the obligations of any of the other parties to this the Merger Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: to indemnification from and be held harmless by the NorthStar stockholders against any loss, expense (iincluding reasonable attorneys’ fees) rely upon the Payment Scheduleor other liability arising out of his service as Seller Representative under this Agreement, (ii) rely upon any signature believed other than for harm directly caused by it to be genuinehis willful misconduct, bad faith or gross negligence, and (iii) reasonably assume that a signatory has proper authorization in such event he shall be entitled to sign on behalf payment thereof from the Escrow Fund out of amounts otherwise payable to the applicable Seller or other partyNorthStar stockholders.
Appears in 2 contracts
Samples: Merger Agreement (Enterprise Financial Services Corp), Agreement and Plan of Merger (Enterprise Financial Services Corp)
Seller Representative. (a) The Selling Shareholders hereby appoint Xxxxx Xxxxxx as the “Seller Representative.” The Seller Representative shall serve as representative of the Selling Shareholders with full power and authority to take all actions under this Agreement and any related documents solely on behalf of each Selling Shareholder. Each Seller Guarantor and each Seller Selling Shareholder by approval of this Agreement hereby irrevocably appoints the Seller Representative to act as such Seller Guarantor’s agent, proxy and such Seller’s exclusive agent and true and lawful attorney-in-fact with for such Selling Shareholder for all purposes of this Agreement, including full power of substitution and authority on such Selling Shareholder’s behalf (i) to do consummate the transactions contemplated herein, (ii) to execute and deliver on behalf of such Seller Guarantor Selling Shareholder any amendment or waiver hereto, (iii) to take all other actions to be taken by or on behalf of such Selling Shareholder in connection herewith, (iv) to negotiate, settle, compromise and such Seller otherwise handle all disputes under Section 2.04, Tax matters pursuant to Section 5.09, and claims made pursuant Article VI hereof, and (v) to do each and every act and exercise any and all things, including executing any and all documents, rights which may be necessary, convenient such Selling Shareholder or appropriate the Selling Shareholders collectively are permitted or required to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes do or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations exercise under this Agreement or any related documents. Each Selling Shareholder agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions consent of the Seller Guarantor Representative and shall survive the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all actsdeath, as contemplated by incapacity or deemed advisable by bankruptcy of any Selling Shareholder. Neither the Seller Representative in connection with this Agreementnor any agent employed by it shall incur any liability to any Selling Shareholder relating to the performance of its duties hereunder except for actions or omissions constituting fraud, the Escrow Agreementbad faith, the gross negligence or willful misconduct.
(b) The Seller Representative Engagement Agreement agrees that it shall not commence proceedings to liquidate, dissolve or wind up its affairs, or voluntarily resign as Seller Representative, as applicable, without providing to Purchaser and the Seller Ancillary Agreementseach other Selling Shareholder prior written notice of its intention to do so. Notwithstanding the foregoingUpon receipt of such notice, the Seller Representative shall have no obligation appoint a substitute Person (which may or may not be a Selling Shareholder) to act as “Seller Representative” hereunder with all rights, powers and authority to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve Selling Shareholders as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the initial Seller Representative has resigned and until such time as a new Person is designated pursuant to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writingthis Section 7.01, the Sellers collectively will act as the Seller Representativesubject to Purchaser’s approval, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior not to the Agreement Date. The immunities and rights to indemnification shall survive the resignation be unreasonably withheld or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementdelayed.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action Any expenses or omission liabilities incurred by the Seller Representative in connection with the performance of its duties in such capacity under this Agreement or any related documents shall be reimbursed to the Seller RepresentativeRepresentative by the Selling Shareholders. The Seller Representative may from time to time submit invoices to the Selling Shareholders covering each Selling Shareholder’s services pursuant respective pro rata portion based on number of Shares held as of Closing of such expenses and/or liabilities and, upon the request of any Selling Shareholder, shall provide such Selling Shareholder with an accounting of all expenses paid. In addition to this Agreement, the Escrow Agreementany other rights or remedies, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsmay, except in the event of liability directly resulting from the Seller Representative’s Fraudupon prior or contemporaneous written notice, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless offset any amounts determined by it to be owed by any Selling Shareholder to the Seller Representative Group against any amounts to be paid to the Selling Shareholders.
(d) Each Selling Shareholder shall severally, but not jointly, based on their respective pro rata portion based on number of Shares held as of Closing, indemnify and hold harmless, the Seller Representative from and against any and all Damages, losses, claims, liabilities, fees, costs, liabilities and expenses (including fees, disbursements the reasonable fees and costs expenses of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”counsel) arising out of or in connection with the Seller Representative’s execution and performance (solely in its capacity as the Seller Representative and not in its capacity as a Selling Shareholder) of this Agreement and any related documents, except for fraud or willful misconduct by the Seller Representative. This indemnification will survive the termination of this Agreement and any related documents. The Seller Representative may, in all questions arising under this Agreement, rely on the Escrow Agreementadvice of counsel and for anything done, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, omitted or suffered in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred good faith by the Seller Representative in performing accordance with such actionsadvice, the Seller Representatives will not be liable to the Selling Shareholders. In no event will the Seller Representative (solely in its capacity as the Seller Representative and not in its capacity as a Selling Shareholder) be liable hereunder or in connection herewith to any of the Selling Shareholders for any indirect, punitive, special or consequential damages.
(de) The Each Selling Shareholder (including, in each case for purposes of this Section 7.01, the Seller Representative) agrees that Purchaser and, following the Closing, the Company, shall be entitled to rely on any action taken by the Seller Representative, on behalf of each Selling Shareholder (each, an “Authorized Action”), and that each Authorized Action shall be binding on each Selling Shareholder as fully as if such Selling Shareholder had taken such Authorized Action. Each Selling Shareholder hereby releases and discharges Purchaser and, following the Closing, the Company, from and against any Losses arising out of or in connection with the Seller Representative’s failure to distribute any amounts received by the Seller Representative on the Selling Shareholders’ behalf to the Selling Shareholders. Payment of all amounts paid by or on behalf of Purchaser to the Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed constitute payment by it Purchaser to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf each of the applicable Selling Shareholders and satisfaction of Purchaser’s obligation to pay such amount hereunder (notwithstanding any withholding by the Seller or other partyRepresentative.)
Appears in 1 contract
Samples: Stock Purchase Agreement (Zix Corp)
Seller Representative. (a) Each The Seller Guarantor and each Seller Selling Partners hereby irrevocably appoints appoint the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact for the Seller and Selling Partners, for and 4846-4639-0869 on behalf of the Seller and Selling Partners, with full power of substitution and authority to do on behalf of such represent the Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement Selling Partners and the Seller Ancillary Agreements; (iii) administering this Agreement Seller’s and Selling Partners’ successors and assigns, as the Seller Ancillary Agreementscase may be, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations all matters arising under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 Transaction Documents and resolving, settling or compromising any such claim; (viii) taking any other all actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable taken by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall or such Transaction Documents will be final, binding and conclusive upon the Seller Guarantors and Sellers Selling Partners and their the Seller’s and Selling Partners’ successors and assigns, as the case may be, as if expressly ratified and confirmed in writingwriting by each of them. Without limiting the generality of the foregoing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decisionhas full power and authority, act, consent or instruction of each on behalf of the Seller Guarantors and Selling Partners and the Sellers (without investigation) Seller’s and none Selling Partners’ successors and assigns, as the case may be, to interpret the terms and provisions of Acquiror this Agreement, to dispute or fail to dispute any claim made pursuant to ARTICLE VIII or any of its Affiliates or Representatives shall have Transaction Documents, to negotiate and compromise any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) dispute that may arise under this Agreement or such Transaction Documents, and to sign any releases or other documents with respect to any such dispute. The Seller Ancillary Agreement and Selling Partners, as the case may be, will be considered deemed a payment by Acquiror party or a signatory to the Seller Guarantors and the Sellers. The powersany agreement, immunities and rights to indemnification granted to document, instrument, or certificate for which the Seller Representative Group are signs on behalf of the Seller or Selling Partners, as the case may be. All decisions, actions, and instructions by the Seller Representative, including without limitation the defense or settlement of any claims for which the Seller and Selling Partners, as the case may be, may be required to indemnify the Buyer Indemnitees pursuant to this ARTICLE VIII, will be conclusive and binding on the Seller and Selling Partners and neither the Seller nor any Selling Partner has the right to object, dissent, protest, or otherwise contest the same. The Buyer has the right to rely conclusively on the instructions and decisions of the Seller Representative as to the settlement of any claims for indemnification by the Buyer pursuant to this ARTICLE VIII, or any other actions required to be taken by the Seller Representative hereunder, and no party hereunder will have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Seller Representative. The appointment of the Seller Representative is an agency coupled with an interest and will be is irrevocable and any action taken by any the Seller Guarantor or any Seller Representative pursuant to the authority granted in any manner or for any reason this Section 9.01 is effective and survive absolutely binding on the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on Selling Partners notwithstanding any successor theretocontrary action of or direction from the Seller or Selling Partners, and shall survive as the delivery case may be. The death or incapacity, or dissolution or other termination of an assignment by any Seller existence, of the whole Seller or any fraction of hisSelling Partners, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representativecase may be, any act does not terminate the authority and agency of the Seller Representative will require (or successor thereto). The provisions of this Section 9.01 are binding upon the act of a majority executors, heirs, legal representatives, and successors of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller RepresentativesSelling Partners, and upon such act by a majority of the Seller Representatives, Acquiror will, any references in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered Agreement to the Seller Guarantorsor a Selling Partner, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reasoncase may be, means and includes the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction successors to the Seller Representative in connection with its services under this Agreementand Selling Partners, as the case may be, rights hereunder, whether pursuant to testamentary disposition, the Escrow Agreement, the Seller Ancillary Agreements laws of descent and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsotherwise.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
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Seller Representative. (a) Each Seller Guarantor hereby irrevocably constitutes and each appoints the Seller irrevocably appoints Seller Representative to act Representative, as such Seller Guarantor’s and such Seller’s exclusive his, her or its agent and true and lawful attorney-in-attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which the Sellers that may be necessary, convenient or appropriate to facilitate the consummation of the Stock PurchaseTransactions, including: (i) receiving execution of the Escrow Agreement and disbursing payments other documents and certificates pursuant to be made hereunderthis Agreement or the Escrow Agreement; (ii) receiving receipt of payments under or pursuant to this Agreement or the Escrow Agreement and disbursement thereof to the Sellers, in accordance with this Agreement or the Escrow Agreement and subject to the terms hereof or thereof; (iii) receipt and forwarding of notices and communications pursuant to this Agreement and or the Seller Ancillary AgreementsEscrow Agreement; (iiiiv) administering administration of the provisions of this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b)Escrow Agreement; (v) resolvinggiving or agreeing to, settling on behalf of the Sellers, any and all consents, waivers, amendments or compromising claims for indemnification asserted against modifications deemed by the Seller Guarantors Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement or the Escrow Agreement and the Sellers pursuant to Article 12execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under amending this Agreement and or the Seller Ancillary AgreementsEscrow Agreement or any of the instruments to be delivered to the Purchaser pursuant to this Agreement or the Escrow Agreement; (vii) asserting claims for taking actions the Seller Representative is expressly authorized to take pursuant to the other provisions of this Agreement or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claimthe Escrow Agreement; (viii) taking any other actions disputing or refraining from disputing, on behalf of the Seller Guarantor and Sellers relative to any amounts to be received by the Sellers under this Agreement, the Escrow Agreement or any agreements contemplated hereby or thereby, any claim made by the Purchaser under this Agreement, the Escrow Agreement or other agreements contemplated hereby or thereby; (ix) negotiating and compromising, on behalf of the Seller Ancillary AgreementsSellers, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement, the Escrow Agreement or any other agreement contemplated hereby or thereby; (x) executing, on behalf of the Sellers, any settlement agreement, release or other document with respect to such dispute or remedy; and (ixxi) performing all actsengaging attorneys, as contemplated by accountants, agents or deemed advisable by consultants on behalf of the Seller Representative Sellers in connection with this Agreement, the Escrow Agreement, Agreement or any other agreement contemplated hereby or thereby and paying any fees related thereto.
(b) The Purchaser shall be fully protected in dealing with the Seller Representative Engagement under this Agreement and may rely upon the Seller Ancillary Agreements. Notwithstanding the foregoing, authority of the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror the Purchaser to the Seller Representative (in such capacity) under this Agreement or any for the benefit of a Seller Ancillary Agreement will shall be considered a payment by Acquiror the Purchaser to the Seller Guarantors and the Sellerssuch Seller. The powers, immunities and rights to indemnification granted to appointment of the Seller Representative Group are is coupled with an interest and will shall be irrevocable by any Seller Guarantor or any Seller the Sellers in any manner or for any reason and survive reason. This power of attorney shall not be affected by the death, incompetenceillness, bankruptcy dissolution, disability, incapacity or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed other inability to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect principal pursuant to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsapplicable law.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
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Seller Representative. (a) Each As of the date hereof, APH GP LP shall be constituted and appointed as the Seller Guarantor Representative, with full and each Seller irrevocably appoints Seller Representative exclusive power and authority to act as representative on the behalf of each Stockholder (i) to consummate the Transactions in accordance with the terms and conditions set forth in this Agreement (including pursuant to the Escrow Agreement), (ii) to pay each such Stockholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to each such Stockholder, (iv) to hold back from disbursement to all of the Stockholders collectively any such funds to the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law (including with respect to the payment of each Stockholder’s expenses in accordance with clause (ii)), (v) to execute and deliver on behalf of each such Stockholder, all documents contemplated herein, and any amendment or waiver hereto, as the Seller Guarantor’s Representative, in its sole discretion, determines to be desirable, (vi) to negotiate, settle, compromise and make any required payments from the Escrow Amount on behalf of all Stockholders, (vii) to give and receive notices on behalf of the Stockholders collectively, (viii) to use the Seller Representative Expense Amount to satisfy costs, expenses and liabilities of the Seller Representative in connection with matters related to this Agreement and the Related Documents, (ix) to enforce and protect the rights and interests of the Stockholders and to enforce and protect the rights and interests of the Seller Representative arising out of or under or in any manner relating to this Agreement and the Related Documents or the Transactions, and to take any and all actions which the Seller Representative believes are necessary or appropriate under this Agreement or any Related Document for and on behalf of the Stockholders, including asserting or pursuing any Action against Parent, Merger Sub or the Surviving Corporation, defending any third party Actions by Parent, Merger Sub or their respective Affiliates, consenting to, compromising or settling any such Seller’s exclusive agent Actions, conducting negotiations with Parent, the Surviving Corporation and true their respective representatives regarding such Actions, and, in connection therewith, to: (A) assert any claim or institute any Action; (B) investigate, defend, contest or litigate any Action initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Authority or Educational Agency against the Seller Representative or any Stockholder, the Escrow Amount, and lawful receive process on behalf of any or all Stockholders in any such Action and compromise or settle on such terms as the Seller Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action; (C) file any proofs of debt, claims and petitions as the Seller Representative may deem advisable or necessary; (D) settle or compromise any Actions asserted under the Escrow Agreement or this Agreement; (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action, it being understood that the Seller Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions and (F) to recover damages regarding the benefit of the bargain lost pursuant to Section 12.2 and (x) to do each and every act and exercise any and all rights which the Stockholders collectively are, permitted or required to do or exercise under this Agreement, unless otherwise agreed to between the Seller Representative and any such Person in writing. The Stockholders, by accepting the consideration payable to them hereunder, irrevocably grant unto said attorney-in-fact with and agent full power of substitution and authority to do and perform each and every act and thing necessary or required to be done in connection with the Transactions as fully to all intents and purposes as Stockholders might or could do in person. Such agency and proxy are coupled with an interest, and are therefore irrevocable without the consent of holder, unless otherwise agreed to between the Seller Representative and any such Person in writing.
(b) All decisions, actions, consents and instructions of the Seller Representative authorized to be made, taken or given pursuant to Section 13.16(a) shall be final and binding upon all the Stockholders, and no Stockholder shall have any right to object, dissent, protest or otherwise contest the same, except for the willful misconduct or gross negligence of the Seller Representative in connection therewith. Neither the Seller Representative nor any agent employed by the Seller Representative shall incur any liability to any Stockholder relating to the performance of its duties as authorized hereunder except for actions or omissions constituting willful misconduct or gross negligence of the Seller Representative in connection therewith. Notwithstanding the foregoing, the Seller Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Seller Representative pursuant to such advice shall in no event subject the Seller Representative to any liability hereunder to any Stockholder. The Seller Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Stockholder, except in respect of amounts actually received on behalf of such Stockholder. The Seller Guarantor and such Seller Representative shall not be required to make any and all things, including executing inquiry concerning either the performance or observance of any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchaseterms, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes provisions or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments conditions of this Agreement, waivers of conditions .
(c) The Stockholders shall be bound by all actions taken and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable documents executed by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement Company Documents and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in and Parent and the Seller Ancillary Agreements and in other Parent Related Parties shall be entitled to rely on any action or decision of the Seller Representative Engagement Agreement(and, for the avoidance of doubt, the Stockholders shall be responsible to Parent and the other Parent Related Parties for purposes of clarity, there are no obligations any action or inaction of the Seller Representative in its capacity as such under this Agreement, any ancillary agreement, schedule, exhibit Company Document or the Escrow Agreement as if the same were taken or not taken by the Stockholders under this Agreement, such Company Disclosure Letter. A decision, act, consent Document or instruction of the Escrow Agreement) Notices or communications to or from the Seller Representative shall constitute notice to or from each of the Stockholders.
(d) In the event that the Seller Representative becomes unable to perform the Seller Representative’s responsibilities or resigns from such position, the Stockholders which held, immediately prior to the Effective Time, a decision majority of the Common Stock shall select another representative to fill such vacancy and such substituted representative shall (i) be deemed to be the Seller Representative for all purposes of this Agreement and (ii) exercise the Seller Guarantors rights and powers of, and be entitled to the Sellers under this Agreementindemnity, reimbursement and other benefits of, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such relianceRepresentative. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation Notice of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act change of the Seller Representative will require shall be provided promptly (and in any event no later than three (3) Business Days thereafter) to Parent.
(e) By accepting the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantorsconsideration payable to them hereunder, the Sellers Stockholders agree, severally (and the Seller Representativesnot jointly and severally), and upon such act by a majority of the Seller Representativesbased on each Stockholder’s Pro Rata Share, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as indemnify the Seller Representative for any reasonfor, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as hold the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writingharmless against, the Sellers collectively will act as the Seller Representativeany loss or liability incurred, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution carrying out its duties under this Section 13.16 including costs and performance expenses of this Agreement, successfully defending the Escrow AgreementSeller Representative against any claim of liability with respect thereto. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of the Seller Representative hereunder for its gross negligence or willful misconduct. However, the Seller Representative Engagement may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The indemnity obligations of this Section 13.16(e) shall survive the resignation, replacement or removal of the Seller Representative or the termination of this Agreement pursuant to Section 12.1.
(f) The Seller Representative Expense Amount shall be deposited by (or on behalf of) Parent into an account designated by the Seller Representative on behalf of the Stockholders. In connection with the performance of its obligations under this Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermoreagreements related hereto, the Seller Representative shall not be required entitled to take any action unless the payment of all reasonable and documented fees, costs and expenses in connection with the acceptance and administration of the Seller Representative has been provided with funds, security duties hereunder incurred or indemnities which, in its determination, are sufficient to protect be incurred (the “Administrative Expenses”) as the Seller Representative against under this Agreement and the costsagreements related hereto, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such Administrative Expenses from the Seller Representative Expense Amount. For the purposes hereof, Administrative Expenses shall include all reasonable and documented costs and expenses and liabilities which may incurred or likely to be incurred by the Seller Representative (solely in performing such actionsits capacity as the Seller Representative) while carrying out the terms of this Agreement and the agreements related hereto, including, reasonable costs and expenses of enforcing any of the rights or interests of the Stockholders or the Seller Representative arising out of or under or in any manner relating to this Agreement, and the agreements related hereto or the Transactions.
(dg) The Seller Representative shall notify the Stockholders if additional funds are required and such Stockholders shall be entitled to: required to deposit additional funds on a pro rata basis (ibased on their Pro Rata Share); provided, that the Seller Representative may offset any such indemnification obligations against any Post-Closing Payments owed to each such Stockholder.
(h) rely upon the Payment ScheduleThe Seller Representative may release at any time, (ii) rely upon in its sole discretion, all or any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf portion of the applicable Seller or other partyRepresentative Expense Amount to the Stockholders in accordance with the payment procedures set forth in Section 3.5(g).
Appears in 1 contract
Samples: Agreement and Plan of Merger (PERDOCEO EDUCATION Corp)
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.is
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx hereby accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each The Sellers irrevocably make, constitute and appoint the Seller Guarantor Representative as their agent and authorize and empower him to fulfill the role of Seller Representative hereunder. In the event of the resignation of a Seller Representative, the resigning Seller Representative shall appoint a successor who shall agree in writing to accept such appointment, and the resigning Seller Representative’s resignation shall not be effective until such a successor shall exist. The Sellers holding a majority of the Polk Stock on the date hereof (a “Majority Interest”) may remove and replace the Seller Representative at any time, provided, however, that such replacement Seller Representative shall be reasonably acceptable to Purchaser. If a Seller Representative should die or become incapacitated or be removed by the Sellers pursuant to this Section 9.18, his successor shall be appointed within twenty-one (21) days after his death or incapacity by the Sellers holding a Majority Interest, and such successor shall be reasonably acceptable to Purchaser. If the Sellers fail to appoint a successor within such 21-day period, then Purchaser shall have the right to appoint the successor from among the Sellers. The choice of a successor Seller Representative appointed in any manner permitted above shall be final and binding upon all of the Sellers and the Purchaser. The decisions and actions of any successor Seller Representative shall be, for all purposes, those of a Seller Representative as if originally named herein.
(b) By the execution of this Agreement, each Seller hereby irrevocably makes, constitutes and appoints the Seller Representative to act as such Seller Guarantorperson’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of and agent, for such Seller Guarantor person and in such Seller any and all thingsperson’s name, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving receive all notices and communications pursuant directed to this Agreement and the such Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Transaction Documents, (ii) to execute and deliver any and all documents required to be executed and delivered by such Seller Ancillary Agreements; pursuant to this Agreement in order to effect the transactions contemplated by this Agreement, (viiiii) asserting claims to receive and provide receipt for all consideration required to be delivered to such Seller under this Agreement, (iv) to perform any and all actions required to be taken by such Seller in connection with any claim for indemnity pursuant to the provisions of Article VI above and (v) to execute and deliver all instruments and documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such Seller could do personally, and each Seller hereby ratifies and confirms as his, her or defending claims its own act, all that the Seller Representative shall do or cause to be done pursuant to the provisions hereof. Notwithstanding the foregoing, except with respect to administrative and other ministerial tasks, the Seller Representative is required and entitled to act only at the written direction of indemnification under Article 8 and resolving, settling or compromising any such claim; Sellers holding a Majority Interest.
(viiic) taking any other actions It is acknowledged by the Sellers appointing the Seller Representative that the designation of the Seller Guarantor Representative as attorney-in-fact is coupled with an interest and is binding upon such Sellers notwithstanding the death, incapacity or dissolution of any such Seller. If any such event shall occur prior to the completion of the transactions contemplated by this Agreement, the Seller Representative is, nevertheless, to the extent that he is legally able to do so, authorized and directed to complete all transactions and act pursuant to this authority as if such event had not occurred. Purchaser is entitled to deal solely with the Seller Representative in connection with this Agreement and is entitled to rely upon the provisions hereof and the Sellers authority granted to the Seller Representative to act on behalf of the Sellers.
(d) The Seller Representative’s acceptance of his duties under this Agreement is subject to the following terms and conditions, which the Parties hereto agree shall govern and control with respect to his rights, duties, liabilities and immunities as Seller Representative (but not in his capacity as a Seller or as an officer, director, or employee of the Company):
(i) The Seller Representative, in his capacity as Seller Representative, makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and he shall not be required to inquire as to the performance of any obligation under this Agreement.
(ii) The Seller Representative shall be protected in acting upon written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which he in good faith believes to be genuine and what it purports to be.
(iii) The Seller Ancillary Agreements; Representative, in his capacity as Seller Representative, shall not be liable for any error of judgment, or for any act done or step taken or omitted by him in good faith, or for any mistake of fact or law, or for anything which he may do or refrain from doing in connection therewith, except his own gross negligence or willful misconduct.
(iv) The Seller Representative, in his capacity as Seller Representative, may consult with competent and responsible legal counsel selected by him, and he shall not be liable for any action taken or omitted by him in good faith in accordance with the advice of such counsel.
(ixv) performing The Sellers shall bear, in proportion to their holdings of Polk Stock on the date hereof, all actsexpenses, as contemplated by or deemed advisable if any (including transfer taxes and other governmental charges) incurred by the Seller Representative in connection with his duties hereunder and shall indemnify and hold him harmless against any and all Losses incurred in connection with the performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, his own gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(de) The Seller Representative Representative, in his capacity as Seller Representative, shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller have no duties or other partyresponsibilities except those expressly set forth herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Directed Electronics, Inc.)
Seller Representative. (ai) Each By virtue of their execution of this Agreement (including any joinder), each Eligible Seller Guarantor designates and each Seller irrevocably appoints the Seller Representative to act as such Seller Guarantor’s and such Eligible Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution and authority to do act for and on behalf of such each Eligible Seller Guarantor and such in all matters pertaining to this Agreement following the Execution Date. Notices or communications to or from the Seller any and all things, including executing any and all documents, which may be necessary, convenient Representative constitute notice to or appropriate to facilitate the consummation from each of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; Sellers for all purposes under this Agreement.
(ii) receiving notices and communications pursuant to this Agreement and In the Seller Ancillary Agreements; (iii) administering this Agreement and event of the Seller Ancillary Agreements, including the initiation and resolution of any disputes death or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions incapacity of the Seller Guarantor and Representative, or the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by termination of the Seller Representative in connection with this Agreement, by the Escrow Agreement, decision of the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf majority of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the a successor Seller Representative Engagement Agreementwill be elected promptly by the Sellers (upon prior written consent of Dresser-Rand, with such consent not to be unreasonably withheld). Each successor Seller Representative has all of the power, authority, rights and privileges conferred by this Agreement upon the original Seller Representative, and for purposes of clarity, there are no obligations of the term “Seller Representative Representative” as used in this Agreement includes any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. successor Seller Representative.
(iii) A decision, act, consent instruction or instruction of Seller Representative shall constitute a decision for all Consent of the Seller Guarantors Representative constitutes a decision, act, instruction or Consent of all the Eligible Sellers and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be is final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingEligible Sellers, and Acquiror, its Affiliates and Representatives Dresser-Rand may rely upon any such decision, act, consent instruction or instruction Consent of the Seller Representative as being the decision, act, consent instruction or instruction of each Consent of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Eligible Sellers. Dresser-Rand is hereby relieved from any liability to any Person for any acts done or omissions by Dresser-Rand in accordance with such decision, act, instruction or Consent of the Seller Guarantor or Representative. Without limiting the generality of the foregoing, Dresser-Rand is entitled to rely, without inquiry, upon any Seller as a result of such reliance. Any payment document delivered by Acquiror to the Seller Representative (in such capacity) under this Agreement as being genuine and correct and having been duly signed or any Seller Ancillary Agreement will be considered a payment sent by Acquiror to the Seller Guarantors Representative.
(iv) This appointment and grant of power and authority by the Sellers. The powers, immunities and rights to indemnification granted Sellers to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller pursuant to this Section 11(a) is made in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller consideration of the whole or any fraction of his, her or its common interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Eligible Sellers and the Seller Representatives, Representative and upon such act by a majority is in consideration of the Seller Representatives, Acquiror will, mutual agreements and covenants made in reliance thereon, this Agreement. It is therefore irrevocable and may not be entitled to all benefits and protections of this Section 13.18(b) as though such act were terminated by the unanimous act of all any Eligible Seller Representatives. Any Seller Representative may resign as a Seller Representative at or by operation of Law, whether upon the death or incapacity of any time by written notice delivered to the Seller GuarantorsEligible Seller, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made or by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability occurrence of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsevent.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Registration Rights Agreement (Dresser-Rand Group Inc.)
Seller Representative. 12.1 Subject to Clause 12.3, each Seller hereby irrevocably appoints NAMID Ltd to act as its representative in respect of any matters which this Agreement identifies are to be done by the Seller Representative or on such Seller’s behalf, including (without limitation) for the purpose of:
(a) Each delivering payment instructions to the Buyer in connection with the payment of the Consideration;
(b) accepting notices on its behalf in accordance with Clause 26;
(c) granting any consent, waiver or approval as specified under this Agreement;
(d) agreeing the Completion Accounts in accordance with Schedule 9; and/or
(e) executing joint instructions to the Retention Agent.
12.2 The Seller Guarantor and Representative shall consult with each Seller irrevocably appoints and take into account the views of each Seller before taking any steps or actions or deciding not to take any steps or actions in accordance with the authority granted to the Seller Representative under this Agreement.
12.3 If the Sellers agree in writing to appoint another person to fill the role of Seller Representative, the Sellers shall promptly notify the Buyer of the identity of such other person, following which such other person shall be the Seller Representative for the purposes of this Agreement.
12.4 If there is no Seller Representative at any time, references to the Seller Representative in this Agreement (except in this Clause 12) will be construed as references to the Sellers collectively.
12.5 Each Seller:
(a) agrees that the Seller Representative, in exercising the powers and authorities conferred by this Clause 12 and/or the Transaction Documents upon such Seller Representative, shall not be acting, or be construed as acting, as the agent or trustee on behalf of any Seller;
(b) agrees that the Seller Representative shall be entitled to take any and all actions that may be necessary or desirable, as determined by the Seller Representative in its sole discretion in carrying out any steps or actions required by it under this Agreement, and shall have no liability whatsoever to any Seller in relation to the exercise of those powers and authorities, except in the case of fraud by the Seller Representative; and
(c) agrees that it shall be bound by any steps or actions taken or any agreement entered into by the Seller Representative to act as such the extent it was acting in accordance with a power granted to it under this Agreement.
12.6 The Buyer shall (a) be entitled to deal exclusively with the Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do Representative on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant matters relating to this Agreement and the Seller Ancillary Agreements; other Transaction Documents (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to matters regarding the purchase price adjustments contemplated by Section 2.3(b); (vSellers) resolving, settling or compromising claims for indemnification asserted against which are set out herein as being a matter which the Seller Guarantors and the Sellers pursuant Representative is entitled to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; deal with and (ixb) performing have the right to rely, without independent investigation or verification, upon all actsdecisions, as contemplated by communications or deemed advisable writings made, given or executed by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action matters regarding the Sellers) and actions taken or omission omitted to be taken by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, in each case to the Escrow Agreement, extent within the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except Representatives’ powers in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection accordance with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.this
Appears in 1 contract
Samples: Share Purchase Agreement (Cadence Design Systems Inc)
Seller Representative. (a) Each Seller Guarantor Riverside is hereby constituted and each Seller irrevocably appoints Seller Representative to act appointed as such Seller Guarantor’s and such Seller’s exclusive agent and true attorney‑in‑fact for and lawful attorney-in-fact with full power of substitution to do on behalf of such the other Sellers and is the Seller Guarantor Representative for all purposes under this Agreement. Without limiting the generality of the foregoing, the Seller Representative has full power and such authority, on behalf of each Seller and his, her or its successors and assigns, to (i) interpret the terms and provisions of this Agreement, any Ancillary Agreement and all thingsthe documents to be executed and delivered by the Sellers in connection herewith, including executing any the Escrow Agreement and the Holdback Agreement, (ii) execute and deliver and receive deliveries of all documentsagreements, which may certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be necessary, convenient or appropriate to facilitate given in connection with the consummation of the Stock Purchasetransactions contemplated by this Agreement, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this including the Escrow Agreement and the Seller Ancillary Agreements; Holdback Agreement, (iii) administering receive service of process in connection with any claims under this Agreement, the Escrow Agreement and or the Seller Ancillary AgreementsHoldback Agreement, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute agree to, negotiate and enter into settlements and compromises of, and assume the defense of, claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any claims under this Agreement, any Ancillary Agreement or any other documents to be executed and delivered by any of the purchase price adjustments contemplated by Section 2.3(b); Sellers, and take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing, (v) resolvinggive and receive notices and communications, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and take all actions necessary or appropriate in the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions judgment of the Seller Guarantor and Representative on behalf of the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement (vii) make any determinations and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in settle any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative matters in connection with the adjustments to the Purchase Price in Section 2.3, (viii) authorize delivery to any Buyer Indemnitee of the Indemnity Escrow Funds or any portion thereof in satisfaction of claims brought by any Buyer Indemnitee for Losses, (ix) distribute the Indemnity Escrow Funds and any earning and proceeds thereon, and (x) deduct, hold back or redirect any funds, including the Holdback Amount, which may be payable to any Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance terms of this Agreement, the Escrow Agreement, the Seller Representative Engagement Holdback Agreement or any agreements or documents executed and the Seller Ancillary Agreementsdelivered in connection herewith in order to pay, in each caseor establish a reserve for, as (A) any amount that may be payable by such Seller Representative Expenses are suffered hereunder or incurred. Such Seller Representative Expenses may be recovered first(B) any costs, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costsfees, expenses and liabilities which may be other Liabilities incurred by the Seller Representative (in performing its capacity as such) in connection with this Agreement or its rights or obligations hereunder. The Seller Representative shall have authority and power to act on behalf of each Seller Indemnitor and each Seller Indemnitee with respect to the disposition, settlement or other handling of all claims under Article X and all rights or obligations arising under Article X. The Seller Indemnitors and Seller Indemnitees shall be bound by all actions and decisions taken and consents and instructions given by the Seller Representative in connection with Article X, and Buyer and other Buyer Indemnitees and the Escrow Agent shall be entitled to rely on, and shall be relieved from any liability to any Person for any acts done by them in accordance with, any such actionsaction, decision, consent or instruction of the Seller Representative. After the Closing, notices or communications to or from the Seller Representative shall constitute notice to or from each Seller Indemnitor and each Seller Indemnitee.
(db) Such agency may be changed by Riverside from time to time upon not less than five days’ prior written notice to Buyer. The Seller Representative, or any successor hereafter appointed, may resign at any time by providing prior written notice to Buyer and the Escrow Agent at least five days prior to such resignation, which notice shall specify the Person replacing the Seller Representative, the effective date of such replacement, the mailing address and telephone and facsimile numbers for such Person and other information reasonably requested by Buyer or the Escrow Agent. A successor Seller Representative will be named by Riverside prior to any such resignation and shall be a Person principally located in the United States. All power, authority, rights and privileges conferred in this Agreement to Riverside as the Seller Representative will apply to any successor Seller Representative.
(c) The Seller Representative shall will not be entitled to: (i) rely upon liable for any act done or omitted under this Agreement as the Payment ScheduleSeller Representative while acting in good faith, (ii) rely upon and any signature believed by it act taken or omitted to be genuinetaken pursuant to the advice of counsel will be conclusive evidence of such good faith. Buyer agrees that it will not look to the personal assets of the Seller Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Company (pre‑Closing) or the Sellers. In performing any of its duties under this Agreement or any agreements or documents executed and delivered in connection herewith, the Seller Representative will not be liable to the Sellers for any Losses that any Person may incur as a result of any act, or failure to act, by the Seller Representative under this Agreement or any agreements or documents executed and delivered in connection herewith, and (iii) reasonably assume the Seller Representative will be indemnified and held harmless by the Sellers for all Losses, except to the extent that a signatory has proper authorization to sign on behalf the actions or omissions of the applicable Seller Representative were taken or other partyomitted not in good faith. The limitation of liability provisions of this Section 12.1(c) will survive the termination of this Agreement and the resignation of the Seller Representative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Logitech International Sa)
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act and designates Xxxx X. Xxxx as such Seller Guarantor’s and such Seller’s exclusive agent and representative (the “Seller Representative”) for all purposes of this Agreement. Each Seller and their respective executors, administrators, legal representatives, successors, heirs, and permitted assigns shall be bound by any and all actions taken by the Seller Representative on their behalf under or otherwise relating to this Agreement and the transactions contemplated hereunder as if such actions were expressly ratified and confirmed by each of them. In the event the Seller Representative is unable or unwilling to serve or shall resign, a successor Seller Representative shall be selected by the holders of a majority of the Securities (with the Warrant Holders voting on an as exercised basis) outstanding immediately prior to the Closing. Such successor Seller Representative shall be designated by an instrument in writing signed by the Sellers (or their successors in interest) holding a majority of the Securities (with the Warrant Holders voting on an as exercised basis) outstanding immediately prior to the Closing, and such appointment shall become effective as to the successor Seller Representative when such instrument shall have been delivered to him or her and a copy thereof delivered to the Buyer and the Escrow Agent. Each successor Seller Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Seller Representative.
(b) The Buyer and the Escrow Agent shall be entitled to rely upon any communication or writings given or executed by the Seller Representative on behalf of the Sellers. All communications or writings to be sent to the Sellers pursuant to this Agreement may be addressed to the Seller Representative and any such communication or writing so sent shall be deemed notice to all of the Sellers hereunder. The Sellers hereby consent and agree that the Seller Representative is authorized to accept deliveries, including any notice, on behalf of each Seller pursuant hereto.
(c) The Seller Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Seller, with full power in each Seller’s name and on each Seller’s behalf to act according to the terms of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and in the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions reasonable discretion of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary AgreementsRepresentative; and (ix) performing in general to do all actsthings and to perform all acts including executing and delivering all agreements, as certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, including the Escrow Agreement, the right to:
(i) receive all notices or documents given or to be given to each Seller Representative Engagement Agreement pursuant hereto or in connection herewith and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf receive and accept service of the Sellers, except as expressly provided herein, legal process in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in connection with any ancillary agreement, schedule, exhibit suit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers proceeding arising under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative shall promptly forward a copy of such notice of process to each Seller.
(ii) receive from the Sellers the Assignments and its members, managers, directors, officers, contractors, agents and employees and any member deliver at the Closing the foregoing in exchange for each Seller’s respective portion of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind Purchase Price payable with respect to such Securities;
(iii) upon confirmation of the receipt of wire transfers or certified or official bank check, and Buyer Shares or Returned Common Units, as applicable, sign and deliver to the Buyer at the Closing and on the Buyer Share Delivery Date or Returned Common Unit Delivery Date, as applicable, and to the Buyer and the Escrow Agent at each subsequent Escrow Disbursement Date a receipt for such Seller’s portion of the consideration and forward such amount to each Seller pursuant to Schedule 1.1, net of any action or omission unreimbursed transaction fees and expenses incurred by the Seller Representative in connection with the Securities Purchase and the transactions contemplated hereby, including financial advisory fees, legal fees and expenses, broker and finder fees and expenses of accountants;
(iv) deliver to the Buyer at the Closing all certificates and documents to be delivered to the Buyer by each such Seller Representative’s services pursuant to this Agreement, together with any other certificates and documents executed by each such Seller and deposited with the Seller Representative for such purpose; and
(v) take such action on behalf of the Sellers as the Seller Representative may deem appropriate in respect of:
(A) waiving any inaccuracies in the representations or warranties of the Buyer contained in this Agreement or in any document delivered by the Buyer pursuant hereto;
(B) waiving the fulfillment of any of the conditions precedent to the Sellers’ obligations hereunder, except with respect to payment of the consideration due to a Seller;
(C) amending the Escrow Agreement;
(D) taking such other action as the Seller Representative is authorized to take under this Agreement;
(E) receiving all documents or certificates and making all determinations, on behalf of the Sellers, required under this Agreement;
(F) all such other matters as the Seller Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby; and
(G) taking all such action as may be necessary after the Closing Date to carry out any of the transactions contemplated by this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, this Agreement, and the Sellers’ rights to the Purchase Price and the amount thereof, may not be altered, amended, or modified, in any respect without the prior written consent of each Seller. In addition, all actions of the Seller Representative must be applied to each of the Sellers on an equal basis based upon their respective Pro Rata Shares. This power of attorney and all authority hereby conferred is granted subject to the interest of the Sellers hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of law, whether by such Seller’s death, disability or by any other event.
(d) The execution of this Agreement by the Sellers shall constitute approval of: (i) the Escrow Agreement and all of the arrangements relating thereto, including, without limitation, the deposit of the Cash Escrow Amount and the Stock Escrow Shares or Escrow Units, as applicable, in escrow to secure the Sellers’ indemnification obligations under ARTICLE VIII of this Agreement and any Downward Adjustment Amount under Section 1.4(d) of this Agreement in the manner set forth herein, (ii) the appointment of the Seller Representative as their representative for purposes of the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Seller, and the taking by the Seller Representative of any and all actions and the making of any decisions required or permitted to be taken or made by them under the Escrow Agreement, and (iii) all of the other terms, conditions and limitations in the Escrow Agreement.
(e) The appointment of the Seller Representative hereunder is irrevocable and any action taken by the Seller Representative pursuant to the authority granted in this Section 2.3 shall be effective and absolutely binding on each Seller notwithstanding any contrary action of, or direction from, a Seller, except for actions taken by the Seller Representative which are in bad faith or grossly negligent. The death or incapacity of a Seller shall not terminate the prior authority and agency of the Seller Representative.
(f) The Seller Representative may resign at any time by giving notice to each Seller, and such resignation shall be effective upon the appointment and qualification of a successor. The Seller Representative may be discharged, and replaced by another person to act as his or her successor, by an instrument in writing signed by a majority of the Sellers (or their successors in interest).
(g) In performing any of his or her duties as Seller Representative under this Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsshall not incur any Liability to any Person, except in the event of liability directly resulting from for Liability caused by the Seller Representative’s Fraudwillful misconduct or gross negligence. Accordingly, gross negligence the Seller Representative shall not incur, or willful misconduct. be liable for, any such Liability for (i) any action that is taken or omitted to be taken in good faith regarding any questions relating to the duties and responsibilities of the Seller Representative under this Agreement, or (ii) any action that is taken or omitted to be taken in reliance upon any instrument that the Seller Representative shall in good faith believe to be genuine, to have been signed or delivered by a proper person or persons and to conform with the provisions of this Agreement.
(h) The Seller Guarantor Sellers, severally and Sellers will not jointly, shall indemnify, defend and hold harmless the Seller Representative Group against, from and against in respect of any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines Liability or amounts paid in settlement (collectively, the “Seller Representative Expenses”) Damages arising out of or resulting from the performance of his or her duties hereunder or in connection with this Agreement (except for Liabilities or losses arising from the gross negligence or willful misconduct of the Seller Representative). Neither the Buyer nor the Escrow Agent shall be liable to the Sellers for dealing with the Seller Representative.
(i) The Sellers represent that in making the decision to enter into this Agreement and consummate the transactions contemplated hereby, they have relied solely on their own independent investigation and each such Seller’s execution own assessment of the past, current, and performance future business, federal and state regulatory requirements, and operational requirements of this Agreementthe Company and the Business. Each Seller has had an opportunity to ask questions of, and receive answers from, the Escrow Agreementofficers of the Company concerning the Company’s Business and financial affairs, which questions were answered to its satisfaction. Each Seller believes that it has received all the information such Seller considers necessary or appropriate for deciding whether to sell its Securities. Accordingly, the Sellers acknowledge, represent and warrant that neither the Seller Representative Engagement Agreement nor any of his Affiliates has made, and the Seller Ancillary AgreementsSellers have not relied upon, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution representations and warranties of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance his Affiliates of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsnature whatsoever.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Securities Purchase Agreement (United American Healthcare Corp)
Seller Representative. By the execution and delivery of this Agreement, each of Sellers hereby irrevocably constitutes and appoints Xxxxx Xxxxxxx (a) Each “Seller Guarantor and each Seller irrevocably appoints Seller Representative to act Representative”), as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact of Sellers with full power of substitution to do on behalf act in the name, place and stead of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate Sellers with respect to facilitate the consummation transfer of the Stock Purchase, including: (i) receiving Equity Interests owned by Sellers in accordance with the terms and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to provisions of this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Pledge Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of Sellers in any litigation or arbitration involving the SellersTransaction Documents and the transactions contemplated thereby, except to take or refrain from taking any action by a Seller under this Agreement or the Pledge Agreement following the Closing and to do or refrain from doing all such further acts and things, and execute all such documents as expressly provided herein, Seller Representative shall deem necessary or appropriate in connection with the Escrow transactions contemplated by this Agreement, including, without limitation, the power:
(a) to act for Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the Seller Ancillary Agreements power to compromise any indemnity claim on behalf of Sellers and in the to transact matters of litigation;
(b) to execute and deliver all ancillary agreements, certificates and documents that Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations deems necessary or appropriate in connection with the consummation of the transactions contemplated by the Transaction Documents;
(c) to do or refrain from doing any further act or deed on behalf of Sellers that Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of the Transaction Documents as fully and completely as Sellers could do if personally present; and
(d) to receive service of process in connection with any ancillary agreement, schedule, exhibit or claims under the Company Disclosure LetterTransaction Documents. A decision, act, consent or instruction The appointment of Seller Representative shall constitute a decision be deemed coupled with an interest and shall be irrevocable, and Parent, Buyer, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of Seller Representative in all matters referred to herein. All notices required to be made or delivered by Parent or Buyer after the Closing to Sellers shall be made to Seller Representative for the benefit of Sellers and shall discharge in full all such notice requirements of Parent or Buyer to Sellers with respect thereto. Sellers hereby confirm all that Seller Representative shall do or cause to be done by virtue of his appointment as Seller Representative of Sellers. Seller Representative shall act for Sellers on all of the matters set forth in the Transaction Documents in the manner Seller Guarantors Representative believes to be in the best interest of Sellers and consistent with the obligations under the Transaction Documents, but Seller Representative shall not be responsible to Sellers for any Losses Sellers may suffer by the performance by Seller Representative of his duties under the Transaction Documents, other than Losses arising from willful violation of Law by Seller Representative or gross negligence in the performance by Seller Representative of his duties under this Section 11.16. Each Seller acknowledges that, after the Closing, Seller Representative will be serving as an officer or director of the Companies and may have a conflict of interest in serving in such capacity.
(e) Buyer understands that the Companies and Sellers have been represented by Bass, Xxxxx & Xxxx, PLC (“Bass, Xxxxx & Xxxx”) as counsel to the Companies and Sellers including in the preparation, negotiation and execution of this Agreement and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Pledge Agreement and the transactions contemplated hereby and thereby, and shall be finalthat Bass, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon Xxxxx & Xxxx has not represented any such decision, act, consent director or instruction of Seller Representative as being the decision, act, consent or instruction of each employee of the Seller Guarantors and the Companies or Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representativepreparation, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers negotiation and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Pledge Agreement or the transactions contemplated hereby or thereby. FurthermoreBuyer acknowledges and agrees, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of itself and its Affiliates, that Bass, Xxxxx & Xxxx may after the applicable Closing represent the Seller Representative, the Sellers and/or their Affiliates in matters related to the transactions contemplated by this Agreement, including the representation of such Persons in matters related to Section 2.3 and to post-Closing claims made by Buyer and any other parties under the indemnification provisions in this Agreement and other claims that may arise out of or other partyrelate to this Agreement. Buyer hereby acknowledges, on behalf of itself and its Affiliates, that it has had an opportunity to ask for and has obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and it hereby waives any conflict arising out of such future representation with respect to the matters contemplated by this Agreement and/or the Pledge Agreement and the transactions contemplated hereby and thereby. Buyer, for itself and its Affiliates, and its and its Affiliates’ respective successors and assigns, agrees that any privilege attaching as a result of Bass, Xxxxx & Xxxx’ engagement and representation in connection with this Agreement or the transactions contemplated hereby will survive the Closing and remain in effect, and from and after the Closing such privilege shall be controlled by the Sellers (and not by Buyer or the Companies).
Appears in 1 contract
Seller Representative. (a) Each The Seller Guarantor and each Seller Related Party, by execution of this Agreement, hereby irrevocably constitutes and appoints Seller Representative to act Xxxxxxx X. Xxxxxxx as such Seller Guarantor’s and such Seller’s exclusive agent and the sole, exclusive, true and lawful agent, representative and attorney-in-fact with full power of substitution to do on behalf of such for the Seller Guarantor and such each Seller Related Party (the “Seller Representative”) for any and all thingsmatters relating to, including executing any and all documentsarising out of, which may be necessaryor in connection with, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and Holdback Agreement, including for purposes of taking any action or omitting to take action on behalf of the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the each Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations Related Party under this Agreement and the Holdback Agreement. The Seller Ancillary Agreements; (vii) asserting claims for Representative hereby accepts such appointment. All actions, notices, communications and determinations by or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions on behalf of the Seller Guarantor and each Seller Related Party shall be given or made by the Seller Representative and all such actions, notices, communications and determinations by the Seller Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, the Seller and all Seller Related Parties. By giving notice to the Seller Representative in the manner provided by Section 9.01, Purchaser shall be deemed to have given notice to Seller and all of the Seller Related Parties. Any action taken by the Seller Representative may be considered by Purchaser to be the action of the Seller and the Sellers under Seller Related Parties for whom such action was taken for all purposes of this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Holdback Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to Seller Representative dies, becomes legally incapacitated or resigns, then Xxxxxxx Xxxxxxxxxxx shall serve as the Seller Representative, any act of Representative hereunder. If Xxxxxxx Xxxxxxxxxxx while serving as the Seller Representative will require the act of dies, becomes legally incapacitated or resigns, then those Seller Related Parties beneficially holding a majority of the Shares beneficially held by all such Seller Representatives which will be binding upon Related Parties as of the Closing Date promptly shall designate in writing to Purchaser a single individual to replace the Seller Guarantors, Representative as the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any successor Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquirorhereunder. If at any time there is no Person acting as shall not be a Seller Representative or the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly Related Parties so fail to designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the successor Seller Representative, with decisions made by the Seller(s) holding then Purchaser may have a majority court of competent jurisdiction appoint a Seller Representative hereunder. Any such successor Seller Representative shall succeed to all of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities rights and rights to indemnification shall survive the resignation or removal obligations of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementhereunder.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (Without limited the “Seller Representative Engagement Agreement”) with generality of the foregoing the Seller Representative is designated as the sole and exclusive agent, representative and attorney-in-fact for the Seller and each Seller Related Party for all purposes related to provide direction this Agreement, including (i) service of process upon the Seller and the Seller Related Parties, (ii) executing and delivering to Purchaser or any other Person on behalf of the Seller or any of or all Seller Related Parties’ any and all instruments, certificates, documents and agreements with respect to the transactions contemplated hereby, including the Holdback Agreement, (iii) receipt of all notices on behalf of the Seller Representative and the Seller Related Parties with respect to any matter, suit, claim, action or proceeding arising with respect to the sale of the Shares or any transaction contemplated by this Agreement including the defense, settlement or compromise of any claim, action or proceeding pursuant to Article VII, (iv) to disburse any funds received hereunder to Seller, (v) to execute and deliver on behalf of such Seller and each such Seller Related Party any amendment or waiver hereto (provided, any such amendment or waiver applies in the same manner to all such Seller Related Parties), (vi) to take all other actions to be taken by or on behalf of Seller and such Seller Related Party in connection with its services herewith, including, without limitation, the execution, delivery and performance of the Holdback Agreement, (vii) to do each and every act and exercise any and all rights which Seller, such Seller Related Party or the Seller Related Parties, as applicable, collectively are permitted or required to do or exercise under this Agreement, and (viii) to resolve claims under the Escrow Holdback Agreement including, but not limited to, all matters concerning any Dispute Notice under Section 2.03(c) and claims for indemnification under Article VII of this Agreement, the Seller Ancillary Agreements . All decisions and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission actions by the Seller Representative in connection with (to the extent authorized by this Agreement) shall be binding upon Seller and all of the Seller Related Parties’, and no Seller Related Party nor Seller shall have the right to object, dissent, protest or otherwise contest same. Seller and the Seller Related Parties may act only through Seller Representative and Purchaser shall be entitled to rely on the Seller Representative’s services authority as the agent, representative and attorney-in-fact of Seller and the Seller Related Parties for all purposes hereunder and shall have no liability for any such reliance. None of Seller or the Seller Related Parties may revoke the authority of Seller Representative. Seller and each Seller Related Party hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by Seller Representative in the exercise of the power-of-attorney granted to Seller Representative pursuant to this AgreementSection 2.05, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the Escrow Agreementdeath, the incapacity, incompetence, bankruptcy, dissolution or liquidation of Seller and each Seller Related Party. Any payment made to Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required deemed to take any action unless the Seller Representative has have been provided with funds, security or indemnities which, in its determination, are sufficient made to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsSeller.
(d) The Seller Representative shall not be entitled to: (i) rely upon liable to Seller or any Seller Related Party for any act or omission taken pursuant to or in conjunction with this Agreement and the Payment ScheduleHoldback Agreement, (ii) rely upon any signature believed except for his or her own gross negligence or willful misconduct. Seller and each Seller Related Party agrees, jointly and severally with the Seller and the other Seller Related Parties, to indemnify and hold harmless the Seller Representative against all Losses incurred by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf the Seller Representative in connection with the performance of the applicable Seller Representative’s duties as the Seller Representative, including, without limitation, any action, suit or other partyproceeding to which the Seller Representative is made a party by reason of the fact such Person is or was acting as the Seller Representative under this Agreement and Holdback Agreement, as the same may be amended, modified or supplemented, except such liability and expense as may result from the gross negligence or willful misconduct of Seller Representative.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller The Parties have agreed that it is desirable to designate Shareholder Representative Services LLC to act as such Seller Guarantor’s Representative on behalf of all Sellers for all purposes in connection with Agreement and such Seller’s exclusive agent the agreements ancillary hereto.
(b) By virtue of the adoption and approval of this Agreement and by receiving the benefits thereof, including the acceptance of any consideration payable pursuant to this Agreement, and without any further action of any Seller or the Company pursuant hereto, each Seller will be deemed to have constituted and appointed, and hereby irrevocably constitutes and appoints Shareholder Representative Services LLC (or any successor representative) as Seller Representative as provided in this Agreement and as the true and lawful representative, attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations exclusive agent under this Agreement and any other Transaction Document, including the power to take any and all actions specified in or contemplated by this Agreement and any other Transaction Document, and take all actions necessary in the judgment of Seller Ancillary Agreements; (vii) asserting claims Representative for the accomplishment of the foregoing. Seller Representative shall take or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) refrain from taking any other and all actions of the Seller Guarantor and the Sellers that it believes are necessary or appropriate under this Agreement for and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the fully as if each such Seller Ancillary Agreements and in the were acting on its own behalf. All actions taken by Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding upon each Seller and conclusive upon the Seller Guarantors and Sellers and their its successors as if expressly confirmed and ratified in writing by each of them and confirmed in writingall defenses which may be available to any Seller to contest, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent negate or instruction disaffirm the action of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (taken in such capacity) good faith under this Agreement or any other Transaction Document are waived. Buyer shall serve notice to Seller Ancillary Representative with respect to any and all matters concerning any Seller arising out of or related to this Agreement, the Transaction Documents or the Transaction. Seller Representative may resign at any time and may be replaced from time to time by the vote or consent of Sellers holding at least fifty-one percent (51%) of the Equity Percentage of the Company (including Xxxx Maital) upon not less than ten (10) days’ prior written notice to Buyer. If Seller Representative shall resign or otherwise be unable to fulfill its responsibilities as representative of Sellers, Sellers shall, within ten (10) days after the occurrence of such event, appoint a successor representative and, promptly thereafter, shall notify Buyer of the identity of such successor. Any such successor shall become the “Seller Representative” for purposes of this Agreement and the other Transaction Documents. If for any reason there is no Seller Representative at any time, all references herein or in any other Transaction Document to Seller Representative shall be deemed to refer to each Seller, as applicable any obligation to provide notice to Sellers’ Representative will be considered a payment deemed satisfied if such notice is delivered to Xxxx Maital at his or her address last known to Buyer. The immunities and rights to indemnification shall survive the resignation or removal of Seller Representative and the Closing and/or any termination of this Agreement or any other Transaction Document. Each Seller agrees that any action taken by Acquiror Seller Representative on its behalf pursuant to the Seller Guarantors terms of this Agreement and the SellersTransaction Documents shall be fully binding on such Seller. The powers, immunities and rights to indemnification granted to the Seller Representative Group hereunder: (i) are coupled with an interest and will shall be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any the respective Seller and shall be binding on any successor thereto, (ii) shall survive the Closing, the resignation or removal of the Seller Representative or the termination of this Agreement, and (iii) shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementFund.
(c) The Except in cases of fraud or willful misconduct, Seller Representative acknowledges that it has read and understands this Section 13.18will incur no liability to Buyer, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative Company or any Equityholder or their respective successors or assigns in connection herewith or with respect to actions taken or omitted to be taken in good faith in its services under this Agreement, the Escrow Agreement, the capacity as Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)Representative. The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to shall not be liable for any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event advice of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconductcounsel. The Seller Guarantor and Sellers will shall indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this AgreementAgreement and any agreements ancillary hereto, in each case as such Seller Representative Expense is suffered or incurred; provided, that in the Escrow Agreementevent that any such Seller Representative Expense is finally adjudicated to have been directly caused by the fraud or willful misconduct of the Seller Representative, the Seller Representative Engagement Agreement and will reimburse the Equityholders the amount of such indemnified Seller Representative Expense to the extent attributable to such fraud or willful misconduct. If not paid directly to the Seller Ancillary AgreementsRepresentative by the Equityholders, in each case, as any such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, by Seller Representative from (i) the funds in the Seller Representative Fund and (ii) any distribution of other funds that become payable to the Adjustment Escrow Amount or Earn-Out Payment Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Seller Representative to be paid from the aforementioned sources of funds, this does not relieve Sellers from their obligation to promptly pay such Seller Representative Expenses as they are suffered or incurred, nor does it prevent the Seller Representative from seeking any remedies available to it at law or otherwise. Notwithstanding anything in this Agreement to the time contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Seller Representative hereunder
(d) No bond will be required of distributionSeller Representative. The Seller Representative Fund shall be used for the purposes of paying directly or reimbursing Seller Representative for any Seller Representative Expenses incurred pursuant to this Agreement or any other Transaction Document. The Seller Representative also shall be entitled to advances against the Seller Representative Expenses from the Seller Representative Fund, in the judgment and discretion of Seller Representative, acting reasonably. The Equityholders will not receive any interest or earnings on the Seller Representative Fund and irrevocably transfer and assign to the Seller Representative any ownership right that they may otherwise have had in any such interest or earnings. The Seller Representative will hold the Seller Representative Fund separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Promptly following the resolution of all contingent payment and indemnification matters and the completion of Seller Representative’s responsibilities in connection herewith, Seller Representative shall deliver any amounts remaining in the Seller Representative Fund to the Payment Agent for further distribution to the Equityholders in proportion with each Equityholder’s Equity Percentage, provided, that any amounts owing to Optionholders who are employees of the Company as of the date hereof shall be delivered to the Company, and secondthe Company shall pay to each such Optionholder his or her share of such amount, directly from the Sellersnet of withholding Taxes. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or therebyhereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(de) The Seller Representative Buyer shall be entitled to: to rely conclusively (without further evidence of any kind whatsoever) upon any document or other paper delivered by Seller Representative as being authorized by each Seller. All decisions and actions by Seller Representative, including any agreement between Seller Representative and Buyer relating to (i) rely upon the Payment Scheduledetermination of the Estimated Closing Purchase Price and the Final Closing Purchase Price pursuant to Section 1.4 and the disbursement of the funds in the Seller Representative Fund (or any portion thereof) in accordance with this Agreement, (ii) rely upon the defense or settlement of any signature believed claims for which Sellers may be required to indemnify the Buyer Indemnified Persons pursuant to Article VIII hereof, (iii) any amendment, supplement, or modification of this Agreement and any waiver of any claim or right arising out of this Agreement, discharging liabilities and obligations (provided that any action, if material to the rights and obligations of Sellers in the reasonable judgment of Seller Representative, will be taken in the same manner with respect to all Sellers (other than on the basis of such Sellers’ respective pro rata shares) unless otherwise agreed by it each Seller who is subject to be genuineany disparate treatment of a potentially adverse nature), and (iiiiv) reasonably assume that a signatory has proper authorization the performance of all things and acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to sign on behalf effectuate the provisions of this Section 11.18, shall be binding upon each Seller, and no Seller shall have the applicable Seller right to object, dissent, protest or other partyotherwise contest the same.
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Seller Representative. (a) Each CSC Shareholder Services LLC is hereby designated as “Seller Guarantor Representative” to represent each of the direct and each Seller irrevocably appoints indirect beneficial owners of the Company (the “Represented Parties”) following the Closing for all purposes of this Agreement other than with respect to the Contingent Purchase Price for which Newco shall act as representative. The Seller Representative to act as such Seller Guarantor’s shall have the following powers and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingduties: (i) receiving to take such actions and disbursing payments to be made hereunderincur such costs and expenses as the Seller Representative, in its sole discretion, deems necessary or advisable to safeguard the interests of the Represented Parties in the Escrow Account; (ii) receiving notices to compromise, modify, settle, waive, relinquish, exchange, liquidate or otherwise resolve the rights of the Represented Parties in and communications pursuant to this Agreement and any amounts that are or may be payable after the Seller Ancillary AgreementsClosing by XXXX hereunder other than the Contingent Purchase Price), which compromise, modification, settlement, waiver, relinquishment, exchange, liquidation or resolution may include payment to the Represented Parties of cash, property or any combination thereof; (iii) administering this Agreement to employ accountants, investment banks, appraisers, and other experts, attorneys and such other agents as the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claimsRepresentative may deem advisable; (iv) making determinations to settle any dispute with respect incur fees, costs and expenses relating to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors performance and the Sellers pursuant to Article 12; (vi) agreeing to amendments implementation of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby (including costs and therebyexpenses relating to third party paying agents, wire expenses and other costs and expenses relating to the payment of any amounts due hereunder), (v) to maintain a register of the Represented Parties; (vi) to receive and distribute the consideration payable hereunder, including payments from the Escrow Account and any earnings and proceeds thereon, and shall holdback therefrom, including from any Contingent Litigation Proceeds that may be finalpayable hereunder, binding and conclusive upon any amounts necessary or appropriate in the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each judgment of the Seller Guarantors Representative and the Sellers (without investigationvii) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to take all actions which the Seller Representative Group are deems necessary or advisable in order to carry out the foregoing. The Seller Representative shall serve without compensation. The Seller Representative shall not be liable to the Represented Parties for the performance of any act or failure to act so long as it acted (or failed to act) in good faith within what it reasonably believed to be the scope of its authority and for a purpose which it reasonably believed to be in the best interests of the Represented Parties.
(b) The appointment of the Seller Representative shall be deemed coupled with an interest and will be is hereby irrevocable. The provisions of this Section 12.13 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by any the Represented Parties to the Seller Guarantor or any Seller in any manner or for any reason and survive the deathRepresentative, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantorsexecutors, the Sellers heirs, legal representatives, successors and the Seller Representatives, and upon assigns of each such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementRepresented Party.
(c) The Seller Representative acknowledges that it has read and understands shall act for the Represented Parties on all of the matters set forth in this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (Agreement in the “Seller Representative Engagement Agreement”) with manner the Seller Representative believes in good faith to provide direction be in the best interest of the Represented Parties and consistent with its obligations under this Agreement. The Seller Representative shall not be responsible to the Represented Parties for any damages they may suffer by reason of the performance by the Seller Representative in connection with its services of the duties of the Seller Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Escrow Agreement, Law or this Agreement by the Seller Ancillary Agreements Representative.
(d) Each Represented Party agrees to indemnify and hold harmless the Seller Representative Engagement Agreement (such Sellersfrom, and promptly reimburse the Seller Representative for, any loss, damage, fees, costs or expenses arising from the performance of the duties of the Seller Representative hereunder, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The cost of any legal counsel or accountants retained by the Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member on behalf of the Advisory Group (collectivelyRepresented Parties or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the “Law or this Agreement by the Seller Representative Group”) will incur no liability of any kind with respect to any action or omission Representative. Any and all fees, costs and expenses incurred by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence performance or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance enforcement of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermoreshall be considered Company Transaction Expenses for purposes of this Agreement.
(e) All actions, decisions and instructions of the Seller Representative shall not be required taken, made or given pursuant to take any action unless the authority granted to the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient pursuant to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative this Section 12.13 shall be entitled to: (i) rely conclusive and binding upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuineeach Represented Party, and (iii) reasonably assume that a signatory has proper authorization no Represented Party shall have the right to sign on behalf of object to, dissent from, protest or otherwise contest the applicable Seller or other partysame.
Appears in 1 contract
Samples: Business Combination Agreement (Platform Specialty Products Corp)
Seller Representative. (a) Each Seller Guarantor TA, Marshall and each Seller hereby irrevocably appoints Seller Representative to act as such Seller Guarantor’s constitute and such Seller’s exclusive agent appoint Xxx Xxxshall, with full power of substitution and re-substitution, xx xxx xxx their true and lawful agent, attorney-in-fact and representative (such person and his appointed and designated successor or successors being herein referred to as the "Seller Representative"), with full power of substitution to do act for and on behalf of such Seller Guarantor TA and such Seller any the Sellers, and each of them, for all thingspurposes under this Agreement and in connection with the transactions contemplated hereby including, including executing any and all documentswithout limitation, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingfor purposes of: (i) receiving determining the amount of any Damages (as such term is hereinafter defined) suffered or incurred by FreeStar and disbursing payments the number of shares of FreeStar Common Stock to be made hereunder; delivered for cancellation in satisfaction of the Sellers' indemnification obligations, (ii) determining the amount of Seller Damages (as that term is hereinafter defined) suffered or incurred by the Sellers, (iii) receiving notices from FreeStar given under this Agreement, of which the Seller Representative will give a copy to the other Sellers, (iv) approving and communications pursuant agreeing with FreeStar as to additions, deletions, changes, modifications and amendments to this Agreement and the Seller Ancillary Agreements; Annexes hereto, except with respect to any addition, deletion, change, modification or amendment to a material financial term or condition of any of such documents that would materially, financially and adversely affect the Sellers, and (iiiv) administering this Agreement settling finally and the Seller Ancillary Agreements, including the initiation and resolution of completely any disputes or claims; controversies among the parties hereto (ivother than solely among the Sellers) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling interpretation or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments effect of this Agreement, waivers of conditions and obligations or damages or relief under this Agreement and any and all transactions contemplated hereby. The Seller Representative shall be entitled to reimbursement by the Seller Ancillary Agreements; (vii) asserting claims Sellers from the consideration actually payable to the Sellers or otherwise for or defending claims of indemnification under Article 8 all reasonable costs and resolvingexpenses incurred by him in fulfilling his duties hereunder, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement agree among themselves that such costs and expenses shall be borne pro rata among them according to the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by number of shares of TA Common Stock owned immediately prior to the Closing. The Sellers agree that the Seller Representative in connection with this Agreementmay make reasonable requests for advances to cover such costs and expenses, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of make such determinationadvances. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively In no event will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation FreeStar be liable for any costs or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability expenses of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be nature incurred by the Seller Representative in performing such actions.
(d) The its capacity as such. TA AND EACH SELLER, JOINTLY AND SEVERALLY, AGREE THAT THE SELLER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SELLERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION 1.07. FreeStar shall not have any obligation or liability to indemnify or defend the Seller Representative in respect of any claim or liability asserted against the Seller Representative by any Seller or its successors or assigns. All determinations, decisions, actions and the like made by the Seller Representative shall be entitled to: (i) rely final, conclusive and binding upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, all Sellers and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller all persons claiming under or other partythrough them.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and Pursuant to the Company Stockholder Approval (including the adoption of this Agreement), each Seller will be deemed to have irrevocably appoints appointed, authorized and empowered the Seller Representative to act as such a representative for the benefit of each Seller Guarantor’s and such Seller’s as the exclusive agent and true and lawful attorney-in-fact with full power of substitution to do for and on behalf of such Seller Guarantor the Sellers in connection with and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasetransactions contemplated in this Agreement (including the Merger), including: which includes the power and authority as is necessary to carry out the functions assigned to the Seller Representative in this Agreement. Without limiting the generality of the foregoing, the Seller Representative has full power and authority, on behalf of each Seller and his, her or its successors and assigns, to (i) receiving interpret the terms and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to provisions of this Agreement and the Seller Ancillary Agreements; documents to be executed and delivered in connection herewith, including the Escrow Agreement, the Paying Agent Agreement, the Deferred Payment Limited Guarantee and the Indemnity Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, including the Escrow Agreement, the Paying Agent Agreement, the Deferred Payment Limited Guarantee and the Indemnity Agreement, (iii) administering receive service of process in connection with any claims under this Agreement Agreement, the Escrow Agreement, the Paying Agent Agreement, the Deferred Payment Limited Guarantee and the Indemnity Agreement, (iv) agree to, negotiate and enter into settlements and compromises of, and assume the defense of, claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and take all actions necessary or appropriate in the judgment of the Seller Ancillary AgreementsRepresentative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or appropriate in the judgment of the Seller Representative on behalf of the Sellers in connection with this Agreement, (vii) make any determinations and settle any matters in connection with the adjustments to the Purchase Price in Section 2.9, (viii) authorize delivery to Buyer of the Escrow Funds or any portion thereof pursuant to Section 2.9, (ix) distribute the Escrow Funds and any earning and proceeds thereon and (x) deduct, hold back, distribute, use or redirect any funds, including the initiation and resolution of Holdback Amount, which may be payable to any disputes or claims; (iv) making determinations to settle any dispute with respect Seller pursuant to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments terms of this Agreement, waivers of conditions the Escrow Agreement, the Paying Agent Agreement, the Deferred Payment Limited Guarantee, the Indemnity Agreement or any agreements or documents executed and obligations under this Agreement delivered in connection herewith in order to pay, or establish a reserve for, (A) any amount that may be payable by such Seller hereunder or (B) any costs, fees, expenses and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable liabilities incurred by the Seller Representative (in its capacity as such) in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement Paying Agent Agreement, the Deferred Payment Limited Guarantee and the Seller Ancillary AgreementsIndemnity Agreement or its rights or obligations hereunder and thereunder. Notwithstanding Buyer and Merger Sub (and as of the foregoingClosing, the Surviving Corporation and the Subsidiaries) are entitled to deal exclusively with the Seller Representative shall have no obligation on matters relating to act on behalf of this Agreement and any other agreement or document executed and delivered in connection herewith and the Sellerstransactions contemplated hereby and thereby, except as expressly provided herein, in the Escrow Agreement, in unless otherwise instructed by the Seller Ancillary Agreements and in Representative. Each Seller upon the Seller Representative Engagement Agreement, and for purposes execution of clarity, there are no obligations a Letter of the Seller Representative in any ancillary agreement, schedule, exhibit Transmittal or the Company Disclosure Letter. A an Option Surrender Certificate will be deemed to agree that a decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement will constitute a decision, act, consent or instruction, as the case may be, of all the Sellers and the transactions contemplated hereby and thereby, and shall will be final, conclusive and binding upon each such Seller, and conclusive upon Buyer and Merger Sub (and as of the Closing, the Surviving Corporation and the Subsidiaries) will be entitled to rely exclusively on such appointment and to treat the Seller Guarantors Representative as the duly appointed attorney-in-fact of each Seller and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (such Seller, without independent verification or investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the The Seller Representative, or any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantorssuccessor hereafter appointed, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to Buyer and a successor Seller Representative will be named by Cortec Group Fund V, L.P. All power, authority, rights and privileges conferred in this Agreement to the Seller Guarantors, the Sellers and Representative will apply to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the successor Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands will not be liable to any Person for any act done or omitted under this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Agreement as the Seller Representative while acting in good faith (and any act taken or omitted to provide direction be taken pursuant to the advice of counsel will be conclusive evidence of such good faith). Buyer agrees that it will not look to the assets of the Seller Representative Representative, acting in connection with such capacity, for the satisfaction of any obligations to be performed by the Company (pre-Closing) or the Sellers. In performing any of its services duties under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements Paying Agent Agreement, the Deferred Payment Limited Guarantee, the Indemnity Agreement or any agreements or documents executed and delivered in connection herewith, the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred will not be liable to the Sellers for any losses that any Person may incur as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability a result of any kind with respect act, or failure to any action or omission act, by the Seller Representative in connection with the Seller Representative’s services pursuant to under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Deferred Payment Limited Guarantee, the Indemnity Agreement or any agreements or documents executed and delivered in connection herewith, and the Seller Representative Engagement will be indemnified and held harmless by the Sellers for all losses, except to the extent such act or omission results from or arises out of willful misconduct or gross negligence on the part of the Seller Representative. The limitation of liability provisions of this Section 11.1(c) will survive the termination of this Agreement and the Seller Ancillary Agreements, except in the event resignation of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints The Seller Representative to act is hereby irrevocably appointed as such Seller Guarantor’s the representative, agent, proxy, and such Seller’s exclusive agent and true and lawful attorney-in-fact with for the Seller for all purposes under this Agreement including the full power of substitution to do and authority on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingSeller’s behalf: (i) receiving to consummate the transactions contemplated under this Agreement and disbursing payments to be made hereunder; the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including the other Transaction Documents), (ii) receiving notices to negotiate and communications settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including the other Transaction Documents), (iii) to receive and disburse to the Parent Securityholders or Seller any funds received on behalf of the Seller under this Agreement or the other Transaction Documents or otherwise, (iv) to withhold any amounts received on behalf of the Seller pursuant to this Agreement or the other Transaction Documents, including the Representative Holdback Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Seller Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including any amounts paid to the Seller in accordance with Section 2.4 (Escrow) and Section 2.5 (Earnout)), make or direct payments of funds from the Representative Holdback Amount, give receipts for funds, authorize deliveries to the Purchaser of cash from the Escrow Accounts in satisfaction of claims asserted by the Purchaser, and object to any claims by any Person against the Escrow Accounts, (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including the other Transaction Documents) without the prior approval of the Seller Ancillary Agreements; or any Parent Securityholder and (iiivii) administering to take all other actions to be taken by or on behalf of the Seller in connection with this Agreement and the Seller Ancillary Agreementsother agreements, instruments, and documents contemplated hereby or executed in connection herewith (including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated other Transaction Documents). The Seller, by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of signing this Agreement, waivers of conditions further agree that such agency and obligations under this Agreement and proxy are coupled with an interest, are therefore irrevocable without the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions consent of the Seller Guarantor Representative and shall survive the Sellers under this Agreement death, incapacity, bankruptcy, dissolution or liquidation of the Seller. All decisions and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable actions by the Seller Representative in connection with this Agreementshall be binding upon the Seller, and the Escrow AgreementSeller shall have the right to object, dissent, protest or otherwise contest the same. The Purchaser may conclusively rely, without independent verification or investigation, upon any such decision or action of the Seller Representative Engagement Agreement as being the binding decision or action of the Seller, and the Purchaser shall not be liable to the Seller Ancillary Agreementsor any other Persons for any actions taken or omitted from being taken by them or by the Purchaser in accordance with or reliance upon any such decision or action of the Seller Representative. Notwithstanding the foregoingThe Seller Representative shall act by a majority in interest of Oak Hill Capital Partners III, the L.P. and Oak Hill Capital Management Partners III, L.P. The Seller Representative shall have no obligation duties or obligations to act on behalf of the SellersSeller hereunder, except as expressly provided herein, set forth in the Escrow this Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under .
(b) By signing this Agreement, the Seller Ancillary Agreementshereby, the Escrow Agreement, agrees to indemnify and hold harmless the Seller Representative Engagement Agreement and the transactions contemplated hereby its partners, managers, officers, agents and therebyother Representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed amounts incurred by such Persons in writing, and Acquiror, its Affiliates and Representatives may rely upon connection with any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability Action to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to which the Seller Representative Group are coupled with an interest and will be irrevocable or such other Person is made a party by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole fact that it is or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person was acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior pursuant to the Agreement Date to act as the Seller Representative and notify Acquiror in writing terms of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time this Agreement, other than as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as result of the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation ’s bad faith or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementwillful misconduct.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Neither the Seller Representative to provide direction nor any of its members, managers, officers, agents or other Representatives shall incur any liability to the Seller Representative in connection with its services under this Agreementby virtue of the failure or refusal of such Persons for any reason to consummate the Transactions or relating to the performance of their duties hereunder, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)except for actions or omissions constituting bad faith or willful misconduct. The Seller Representative and its members, managers, directors, officers, contractors, agents and employees other Representatives and their respective Affiliates shall have no liability in respect of any member Action brought against such Persons by the Seller, regardless of the Advisory Group (collectivelylegal theory under which such liability or obligation may be sought to be imposed, the “Seller Representative Group”) will incur no liability of any kind with respect to whether sounding in contract or tort, or whether at law or in equity, or otherwise, unless such Persons took or omitted taking any action in bad faith or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event as result of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall have the right, in its sole discretion, to recover from any amounts withheld by the Seller Representative, including without limitation, the Representative Holdback Amount, its reasonable out of pocket expenses incurred in the performance of its duties hereunder (the “Charges”). The Seller will be entitled to: obligated to pay any Charges in excess of the Representative Holdback Amount to the Seller Representative.
(ie) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuineIn furtherance of, and (iiiwithout limiting any rights of the Seller Representative set forth in, Sections 12.13(a)(iv), 12.13(a)(v) reasonably assume that a signatory has proper authorization and 12.13(d), the Seller Representative shall have the right and the Seller hereby authorizes the Seller Representative, to sign use the Representative Holdback Amount to satisfy potential future obligations of the Seller and expenses incurred by the Seller Representative in connection with performing its obligations under this Agreement and the other Transaction Documents. The Representative Holdback Amount shall be retained by the Seller Representative until such time as the Seller Representative shall determine, and, subject to the terms of this Agreement, the balance of the Representative Holdback Amount, if any, shall be delivered by the Seller Representative to the Parent Securityholders on behalf of the applicable Seller. The Seller will not receive any interest or earnings on the Representative Holdback Amount and irrevocably transfer and assign to the Seller Representative any ownership right that they may otherwise have had in any such interest or earnings. The Seller Representative will not be liable for any loss of principal of the Representative Holdback Amount other partythan as a result of its bad faith or willful misconduct. The Representative Holdback Amount shall be held in an FDIC-insured account or accounts at a nationally recognized financial institution.
(f) In the event that the Seller Representative becomes unable or unwilling to continue in its capacity as Seller Representative, or if the Seller Representative resigns as the Seller Representative, the Seller may by written consent appoint a new representative as the Seller Representative. Notice and a copy of the written consent appointing such new representative and bearing the signature of the Seller must be delivered to the Purchaser. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by the Purchaser.
Appears in 1 contract
Samples: Share Purchase Agreement (Alcoa Inc)
Seller Representative. (a) Each Seller Guarantor and The CapStreet Group, LLC is hereby appointed by each Seller irrevocably appoints Seller Representative to act (and their successors and assigns) as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do (the "SELLER REPRESENTATIVE") for each Seller, for and on behalf of such Seller Guarantor and such Seller any and all thingsSellers, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving to enter into and disbursing payments perform the Escrow Agreement, to be made hereunder; authorize delivery to the Purchaser Indemnitees of cash from the Escrow Funds in satisfaction of claims by the Purchaser Indemnitees, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the reasonable judgment of the Seller Representative for the accomplishment of the foregoing, (ii) receiving notices and communications pursuant to take any other action expressly delegated to the Seller Representative under the other terms of this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and with the Seller Ancillary Agreements, including the initiation and resolution consent of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions who owned greater than 86% of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all actsShares, as contemplated by to execute any amendment, waiver or deemed advisable by the Seller Representative in connection with consent of this Agreement, the Escrow Agreement, Agreement or the parent guaranty. Sellers hereby agree that the Reimbursement Fund shall be set aside and paid to the Seller Representative Engagement Agreement to cover administrative and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations other expenses of the Seller Representative in any ancillary agreement, schedule, exhibit or associated with the Company Disclosure Letter. A decision, act, consent or instruction performance of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers its obligations under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountSection 12.8.
(b) If at The Seller Representative shall not be liable for any time there is more than one Person appointed to serve act done or omitted hereunder as the Seller RepresentativeRepresentative while acting in good faith and in the exercise of reasonable judgment. Sellers shall severally indemnify the Seller Representative and hold the Seller Representative harmless against any loss, any act liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the acceptance or administration of the Seller Representative’s execution 's duties hereunder, including the reasonable fees and performance expenses of this Agreementany legal counsel retained by the Seller Representative. Any party dealing with the Seller Representative is entitled to rely on the actions taken by, the Escrow Agreementand consents and approvals given by, the Seller Representative Engagement Agreement and without the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable need to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless investigate whether the Seller Representative has been provided with funds, security or indemnities which, obtained the requisite consent described in its determination, are sufficient Section 12.8(a)(iii). A Party shall be entitled to protect rely on the Seller Representative against Representative's actions, consents and approvals notwithstanding any knowledge of the costs, expenses and liabilities which may be incurred by relying Person. No Person shall have any liability for relying on the Seller Representative in performing such actionsthe foregoing manner.
(dc) The Concurrent with the execution hereof, each Seller has delivered to the Seller Representative shall be entitled to: (i) rely upon certificates representing such Seller's Shares along with stock powers executed in blank authorizing the Payment Schedule, (ii) rely upon any signature believed by it Seller Representative to be genuine, and (iii) reasonably assume that a signatory has proper authorization transfer such Shares to sign on behalf Purchaser at the Closing solely as all of Sellers' conditions to Closing are satisfied. Each Seller hereby authorizes the Seller Representative to deliver such certificates to Purchaser in connection with the Closing of the applicable transactions contemplated by this Agreement in exchange for the contemporaneous payment of the portion of the Purchase Price to which such Seller or other partyis entitled pursuant to the terms hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Macquarie Infrastructure CO LLC)
Seller Representative. (a) Each Seller Guarantor and Allied Capital Corporation is hereby appointed by each Seller irrevocably appoints Seller Representative to act (and their successors and assigns) as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do (the “Seller Representative”) for each Seller, for and on behalf of such Seller Guarantor and such Seller any and all thingsSellers, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving to enter into and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, perform the Escrow Agreement, to authorize delivery of cash from the Seller Representative Engagement Agreement Escrow Fund in satisfaction of claims pursuant to this Agreement, to object to such deliveries, to agree to, negotiate, enter into settlements and the Seller Ancillary Agreements. Notwithstanding the foregoingcompromises of, the Seller Representative shall have no obligation and demand arbitration and comply with orders of courts and awards of arbitrators with respect to act on behalf of the Sellerssuch claims, except as expressly provided herein, and to take all actions necessary or appropriate in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations reasonable judgment of the Seller Representative in any ancillary agreement, schedule, exhibit or for the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all accomplishment of the Seller Guarantors and the Sellers under this Agreementforegoing, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if (ii) to take any other action expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted delegated to the Seller Representative Group are coupled with an interest under the other terms of this Agreement and will be irrevocable by (iii) to execute any amendment, waiver or consent of this Agreement or the Escrow Agreement. Any notice to any Seller Guarantor required or any permitted under this Agreement may be satisfied by notice to the Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative.
(b) If at The Seller Representative shall not be liable for any time there is more than one Person appointed to serve act done or omitted hereunder as the Seller RepresentativeRepresentative while acting in good faith and in the exercise of reasonable judgment. Sellers shall severally indemnify the Seller Representative and hold the Seller Representative harmless against any loss, any act liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the acceptance or administration of the Seller Representative’s execution duties hereunder, including the reasonable fees and performance expenses of this Agreementany legal counsel retained by the Seller Representative. Any party dealing with the Seller Representative is entitled to rely on the actions taken by, the Escrow Agreementand consents and approvals given by, the Seller Representative Engagement Agreement and Representative. A Party shall be entitled to rely on the Seller Ancillary AgreementsRepresentative’s actions, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from consents and approvals notwithstanding any distribution knowledge of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellersrelying Person. The Sellers acknowledge that the Seller Representative No Person shall not be required to expend or risk its own funds or otherwise incur have any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by for relying on the Seller Representative in performing the foregoing manner.
(c) Concurrent with the execution hereof, each of the Initial Closing Sellers has delivered to the Seller Representative certificates representing such actionsSeller’s Initial Closing Shares, except as provided below, along with stock powers executed in blank, and hereby authorizes the Seller Representative to transfer such shares to Purchaser at the Closing subject to the satisfaction of all of Sellers’ conditions to Closing. Each of the Initial Closing Sellers hereby authorizes the Seller Representative to deliver such certificates to Purchaser in connection with the Closing of the transactions contemplated by this Agreement in exchange for the contemporaneous payment of the portion of the Initial Closing Shares Purchase Price to which such Seller is entitled pursuant to the terms hereof. 3,013.88 of the Initial Closing Shares owned by Directional Aviation Group, LLC (the “Escrowed DAG Shares”) are currently being held by US Bank, NA, successor to Wachovia Bank, N.A. pursuant to the Escrowed Shares Escrow Agreement (the “US Bank Escrow Agreement”) among Wachovia Bank, N.A., Allied Capital Corporation, Directional Aviation Group, LLC and Bluechip Investment Company dated March 17, 2005, as amended on January 27, 2006 to, among other things, add Corporate Wings-CGF, LLC and Corporate Wings-Cleveland, LLC as parties thereto. Because the Escrowed DAG Shares are being held in escrow to secure certain indemnity obligations in favor of the Company and its Subsidiaries until July 27, 2007, these shares will not be delivered to the Seller Representative concurrent with the execution hereof. In the event that the Closing has not taken place prior to the release of the Escrowed DAG Shares from escrow and this Agreement has not been terminated pursuant to Section 9.1, Directional Aviation Group, LLC hereby authorizes the Seller Representative to instruct the escrow agent under the US Bank Escrow Agreement to deliver the Escrowed DAG Shares to the Seller Representative to be held in accordance with this Section 1.9. In the event that the Closing occurs prior to the release of the Escrowed DAG Shares from escrow, Directional Aviation Group, LLC hereby authorizes the Seller Representative to instruct the escrow agent under the US Bank Escrow Agreement to deliver the Escrowed DAG Shares to the Purchaser. If this Agreement is terminated pursuant to Section 9.1, then the Seller Representative will be required to return to the respective Initial Closing Sellers any stock certificates and stock powers delivered to the Seller Representative hereunder by such Initial Closing Sellers.
(d) The If the Seller Representative receives a payment from the Purchaser pursuant to Section 1.4(a)(iv), the amount of any such payment shall be entitled to: (ideposited into an escrow account separate from the Escrow Fund with the Escrow Agent. The Escrow Agent shall hold, invest and disburse the funds in accordance with the terms and conditions of an escrow agreement between the Seller Representative and the Escrow Agent. The escrow agreement will permit the Seller Representative to instruct the Escrow Agent to disburse the escrow deposit and any investment income earned thereon to the Sellers and/or the Purchaser in a manner that will satisfy the Seller Representative’s obligations under Section 1.7(e) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, hereof. Any fees and (iii) reasonably assume that a signatory has proper authorization to sign on behalf expenses of the applicable Seller or other partyEscrow Agent shall be paid from the funds deposited with the Escrow Agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Macquarie Infrastructure CO LLC)
Seller Representative. (a) Each Seller Guarantor By virtue of the adoption of this Master Purchase Agreement by execution below and each Seller pursuant to applicable Legal Requirements, the Sellers irrevocably appoints nominate, constitute and appoint the Seller Representative to act as such Seller Guarantor’s their sole and such Seller’s exclusive agent agent, representative and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller take any and all things, including executing actions and make any and all documentsdecisions required or permitted to be taken or made by the Seller Representative under this Master Purchase Agreement and the Escrow Agreement, which may be necessary, convenient including actions or appropriate to facilitate the consummation of the Stock Purchase, includingdecisions with respect to: (i) receiving and disbursing payments to be made hereunderservice of process upon the Sellers; (ii) receiving notices executing and communications pursuant delivering to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes Buyer or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act Person on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes any of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors Sellers any and the Sellers under all instruments, certificates, documents and agreements called for by this Agreement, the Seller Ancillary Agreements, Master Purchase Agreement or the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby; (iii) receiving or providing notices on behalf of the Sellers with respect to any matter or Proceeding arising out of or relating to this Master Purchase Agreement, the Escrow Agreement or the Contemplated Transactions; (iv) negotiating, agreeing to and participating in the defense or prosecution of any settlement, amendment, compromise of any provision or Proceeding set forth in this Article IX and the Escrow Agreement; (v) resolving any questions regarding the Closing Balance Sheet and the Net Working Capital Adjustment Amount; (vi) resolving any questions regarding any Adverse Change Notice and the Adverse Change Adjustment Amount; (vi) agreeing, negotiating, or entering into settlements and compromises of, and shall be final, binding complying with arbitration awards and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) court orders arising under this Agreement or the Escrow Agreement; (vii) authorizing release and delivery to a Buyer Indemnified Person from the Escrow Amount of cash payments in satisfaction of any Seller Ancillary Agreement will amounts determined to be considered a payment by Acquiror due and owing to such Buyer Indemnified Person pursuant this Sections 2.5(e), 2.6(e) or 2.7(e) or this Article IX in satisfaction of any claim for indemnification hereunder; (viii) taking all other actions necessary or appropriate in the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to good faith judgment of the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller accomplishment of the whole or foregoing; hereunder; (ix) in connection with any fraction of histhe foregoing actions, her or its interest in engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate to properly discharge the Adjustment Seller Representative’s duties and obligations hereunder and under the Escrow AmountAgreement.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of In connection with this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Master Purchase Agreement and the Escrow Agreement, the Sellers may act only through the Seller Representative. Buyer shall be entitled to rely on the Seller Representative’s authority as the agent, representative and attorney-in-fact of the Sellers for all purposes under this Master Purchase Agreement and the Escrow Agreement and shall have no liability for any such reliance. The Seller Representative shall have the authority to enforce any provision of this Master Purchase Agreement on behalf of the Sellers and no Seller may revoke the authority of the Seller Representative.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18shall not be liable to the Sellers for any act done or omitted hereunder in his capacity as the Seller Representative, and xxxxxx accepts such appointmentunless caused by his willful misconduct. Certain Sellers have entered into an engagement agreement (the “If Xxxxxxx Xxxxxx resigns as Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the or becomes legally incapacitated, then Xxxxx Xxxxxxxx shall be appointed as successor Seller Representative in connection with its services under this Agreementhis place. If Xxxxx Xxxxxxxx declines to serve, the Escrow Agreementresigns or becomes legally incapacitated, the Seller Ancillary Agreements and the then a successor Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member may be appointed by a majority in interest of the Advisory Group (collectively, Sellers which shall be determined based on the “Seller Representative Group”) will incur no liability number of any kind with respect to any action or omission Shares held by the Seller Representative in connection with Sellers on the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsClosing Date.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (Chase Corp)
Seller Representative. (a) Each Seller and Member Guarantor hereby irrevocably constitutes and each Seller irrevocably appoints Seller Representative Txxxxx X. Xxxxxx, or his successor as determined by Sellers with prompt written notice to act the Purchaser, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of such Seller and Member Guarantor, with full power powers of substitution to do act in the name, place and stead of such Seller and Member Guarantor with respect to the performance on behalf of such Seller and Member Guarantor under the terms and provisions hereof and to do or refrain from doing all such Seller any further acts and all things, including executing any and to execute all such documents, which may be necessary, convenient as the Seller Representative shall deem necessary or appropriate to facilitate in connection with any transaction contemplated hereunder, including the consummation of the Stock Purchase, including: power to:
(i) receiving act for such Seller and disbursing Member Guarantor with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of such Seller and Member Guarantor relating only to monetary payments to be made hereunder; which are held under the Escrow Agreement;
(ii) receiving notices amend or waive any non-material provision hereof (including any condition to the Closing) in any manner that does not differentiate among any Seller;
(iii) employ, obtain and communications rely upon the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Seller Representative;
(iv) receive any portion of the Purchase Price or any other payment due from the Purchaser to such Seller pursuant to this Agreement Agreement;
(v) act for each Seller with respect to all Purchase Price matters and the all Purchase Price adjustments matters referred to herein;
(vi) act for each Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Escrow Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; ;
(vii) asserting claims incur any expenses, liquidate and withhold assets received on behalf of such Seller prior to their distribution to such Seller to the extent of any amount that the Seller Representative deems necessary for payment of or defending claims of indemnification under Article 8 as a reserve against expenses, and resolving, settling pay such expenses or compromising any deposit the same in an interest-bearing bank account established for such claim; purpose;
(viii) taking receive all notices, communications and deliveries hereunder on behalf of such Seller and Member Guarantor; and
(ix) do or refrain from doing any other actions further act or deed on behalf of such Seller and Member Guarantor that the Seller Representative deems necessary or appropriate, in the sole discretion of the Seller Representative, relating to the subject matter hereof as fully and completely as such Seller and Member Guarantor could do if personally present and the Sellers under this Agreement acting and as though any reference to such Seller and Member Guarantor herein was a reference to the Seller Ancillary Agreements; Representative.
(b) The appointment of the Seller Representative shall be deemed coupled with an interest and (ix) performing all actsshall be irrevocable, and any other individual or entity may conclusively and absolutely rely, without inquiry, upon any action of the Seller Representative as the act of each Seller and Member Guarantor, as contemplated applicable, in all matters referred to herein. Each Seller and Member Guarantor hereby ratifies and confirms that the Seller Representative shall do or cause to be done by virtue of the Seller Representative’s appointment as Seller Representative of such Seller and Member Guarantor. The Seller Representative shall act for each Seller and Member Guarantor, as applicable, on all of the matters set forth herein in the manner the Seller Representative believes to be in the reasonable best interest of such Seller and Member Guarantor, but the Seller Representative shall not be responsible to any Seller or deemed advisable Member Guarantor for any loss or damage such Seller may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties hereunder, other than any loss or damage arising from the Seller Representative’s willful misconduct or gross negligence in connection with this Agreementthe performance of the Seller Representative’s duties hereunder.
(c) Each Seller and Member Guarantor hereby expressly acknowledges and agrees, the Escrow Agreement, that the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the such Seller Ancillary Agreements and in the Seller Representative Engagement AgreementMember Guarantor notwithstanding any dispute or disagreement, and for purposes of clarity, there are no obligations of the Seller Representative in that any ancillary agreement, schedule, exhibit individual or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative entity shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to rely on any and all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission actions taken by the Seller Representative in connection with hereunder without liability to, or obligation to inquire of, any Seller and Member Guarantor, as applicable. In the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, event the Seller Representative Engagement Agreement and resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Ancillary AgreementsRepresentative shall be Mxxxxxx X. Xxxxxxxxx; provided, except however, that in the event of liability directly resulting from for any reason Mxxxxxx X. Xxxxxxxxx is removed, unable or unwilling to perform as the successor Seller Representative’s Fraud, gross negligence or willful misconductthen one of Jxxxx X. Xxxxxxxxx, Mxxxxxx X. Xxxxxxxxx and Fxxxx X. Xxxxxx, in that order, shall appoint a successor; provided, further, however, that such Seller Representative may be removed by a majority vote of the Member Guarantors’ interest as set forth in Schedule 2. The Seller Guarantor Sellers (jointly and Sellers will indemnify, defend severally) and each Member Guarantors (severally only based on and limited to such Member Guarantor’s percentage listed in Schedule 2 of the Purchase Price) shall indemnify and hold harmless the Seller Representative Group harmless from and against any and all Damagesliabilities, losses, claims, liabilities, fees, costs, damages and expenses (including attorneys’ fees, disbursements and costs ) reasonably incurred or suffered as a result of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out performance of or in connection with the Seller Representative’s execution and performance duties hereunder, except to the extent arising from the willful misconduct or gross negligence of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable Representative.
(d) Notwithstanding anything to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermorecontrary herein, the Seller Representative shall not be required authorized to take modify, amend or waive any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsmaterial term of this Agreement.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably hereby appoints Seller Representative to act as such Seller Guarantor’s under and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to the terms of this Agreement Agreement. Seller Representative shall not be compensated for his services as Seller Representative, provided, however, that Seller Representative shall be entitled to reimbursement for all fees, costs and expenses incurred by Seller Representative in discharging his duties in accordance with Section 12.1(b). Seller Representative is hereby vested with the Seller Ancillary Agreements; (iii) administering full power, authority, duty and responsibility to represent the interests of Sellers as set forth in this Agreement and the Seller Ancillary AgreementsAgreement, including the initiation full power and resolution of any disputes or claims; (iv) making determinations authority to settle any dispute claim by a Purchaser Indemnitee against Sellers. All actions taken by Seller Representative shall be binding upon Sellers, their successors, heirs, Representatives and assigns as if expressly confirmed and ratified in writing by each of them. Seller Representative shall not be personally liable for any actions or decisions taken or made in good faith in managing or discharging his duties and responsibilities in accordance with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments terms of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement. In discharging his duties and responsibilities, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation all rights and powers necessary and incident to act on behalf of the Sellersproper discharge thereof, except as expressly provided herein, including the right and power to engage and pay for professional or other services. Each Seller hereby waives any claim against Purchaser or any Purchaser Indemnitee for any action thereby in reliance upon the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction authority of Seller Representative (and such Seller shall constitute a decision hereby indemnify and hold harmless Purchaser and any Purchaser Indemnitee for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any Damages resulting from any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of claim brought by such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountSeller).
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers All reasonable fees and the Seller Representatives, expenses (including attorneys’ fees and upon such act other professional fees) incurred by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to performance of his duties under this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in Escrow Agreement shall be reimbursed by Sellers on a pro rata basis. In the event Seller Representative is entitled to reimbursement, Seller Representative shall first make a written demand upon Sellers for payment of liability directly resulting their pro rata portion of such fees and expenses. In the event Seller Representative is not reimbursed by Sellers within fifteen (15) Business Days of such demand, Seller Representative may pay such fees and expenses by deducting the full amount of such fees and expenses from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Escrow Amount otherwise payable to Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs on a pro rata basis upon termination of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow AgreementAccount or, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered firstprior to termination, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, interest earned on the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsAmount.
(dc) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon each Seller’s agent for service of process in connection with any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller dispute or other partyclaim arising under this Agreement or any Collateral Agreement.
Appears in 1 contract
Samples: Interest Purchase Agreement (Envision Healthcare Corp)
Seller Representative. (a) Each By the execution and delivery of this Agreement, Seller Guarantor and each Seller Member hereby irrevocably constitutes and appoints Seller Representative to act Xxxx Xxxxxx, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of Seller and each Member with full power powers of substitution to do on behalf act in the name, place and stead of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute each Member with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingperformance on behalf of Seller and each Member under terms and provisions of the Acquisition Documents including the Escrow Agreement as the same may be from time to time amended, settling and to do or compromising claims for indemnification asserted against refrain from doing all such further acts and things, and to execute all such documents, as the Seller Guarantors Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under the Acquisition Documents, including, without limitation, the power to:
(a) act for Seller and the Sellers pursuant Members with respect to Article 12; (vi) agreeing all matters referred to amendments of this Agreementin the Acquisition Documents, waivers of conditions including all adjustments to the Purchase Price and obligations under this Agreement all indemnification matters set forth herein and the Seller Ancillary Agreements; (vii) asserting claims for right to compromise or defending claims of indemnification under Article 8 and resolving, settling or compromising settle any such claimclaims on behalf of Seller and the Members;
(b) amend or waive any provision of the Acquisition Documents (including any condition to Closing);
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Seller Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of Seller and the Members prior to their distribution to the Members to the extent of any amount which the Member Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of Seller and the Members under the Acquisition Documents; and
(viiif) taking do or refrain from doing any further act or deed on behalf of Seller and the Members which the Seller Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Acquisition Documents as fully and completely as Seller or any of the Members could do if personally present and acting and as though any reference to Seller or any of the Members in the Acquisition Documents were a reference to the Seller Representative. The appointment of the Seller 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 Seller Guarantor Representative as the acts of Seller and each Member in all matters referred to in the Acquisition Documents. The Seller and each Member hereby ratifies and confirms all that the Seller Representative shall do or cause to be done by virtue of such Seller Representative’s appointment as Seller Representative of Seller and each Member. The Seller Representative shall act for Seller and each Member on all of the matters set forth in the Acquisition Documents in the manner the Seller Representative believes to be in the best interest of Seller and the Sellers under this Agreement and Members, but the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated Representative shall not be responsible to Seller or any Members for any loss or damage Seller or any Members may suffer by or deemed advisable reason of the performance by the Seller Representative in connection with this Agreementof such Seller Representative’s duties under the Acquisition Documents. The Seller Representative’s obligations hereunder are subject to the Written Consent of the Members of Seller, dated as of the Escrow Agreement, Effective Date which indemnification terms are incorporated herein by reference. The Seller and each Member hereby expressly acknowledges and agrees that the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of Seller and each Member notwithstanding any dispute or disagreement among Seller and/or any of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement AgreementMembers, and for purposes of clarity, there are no obligations of the Seller Representative in that any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative person shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to rely on any and all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission taken by the Seller Representative in connection with under the Acquisition Documents without liability to, or obligation to inquire of, Seller Representative’s services pursuant to this Agreement, or any of the Escrow Agreement, Members. If the Seller Representative Engagement Agreement resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Representative shall be the person which Seller and the Members appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then Seller Ancillary Agreements, except in or any Member shall have the event right to petition a court of liability directly resulting from the competent jurisdiction for appointment of a successor Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend each Member does hereby agree to jointly and severally indemnify and hold harmless the Seller Representative Group harmless from and against any and all Damagesliability, lossesloss, claimscost, liabilitiesaction, feescause of action, damage, suits, debts, dues, sums of money, account reckonings, bills, covenants, contracts and agreements whatsoever in law or equity, or expense (including, without limitation, attorneys’ fees and costs, expenses (including fees, disbursements and costs ) reasonably incurred or suffered as a result of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out performance of or in connection with the such Seller Representative’s execution and performance duties under the Acquisition Documents. [Remainder of this Agreement, page intentionally left blank. Signatures begin on the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsnext page.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.]
Appears in 1 contract
Samples: Asset Purchase Agreement
Seller Representative. (a) Each In order to administer efficiently the determination of the Final Closing Adjustment Statement, the Final Earnout Statement, the defense and/or settlement of any indemnification obligations of the Seller Guarantor Parties and each any other obligations of the Seller Parties contained in this Agreement, the Seller Parties hereby irrevocably appoints Seller Representative to act appoint Xxxxx X. Xxxx, III as such Seller Guarantor’s and such Seller’s exclusive representative, agent and true and lawful attorney-in-fact with full power (the “Seller Representative”) for each Seller Party (i) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement, the Seller Ancillary Documents and the Purchaser Ancillary Documents, including those relating to the determination of substitution the Final Closing Adjustment Statement, the determination of the Final Earnout Statement, indemnification claims, and any other claims or obligations contained in this Agreement, (ii) to do make decisions on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Parties with respect to the purchase price adjustments transactions and other matters contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Seller Ancillary Documents, including regarding (A) the determination of the Final Closing Date Balance Sheet, (B) the determination of the Final Earnout Statement, (C) indemnification claims, (D) amendments to this Agreement, the Seller Representative Engagement Agreement Ancillary Documents, or the Purchaser Ancillary Documents, (E) the preparation and review of any Tax Returns and (F) the defense of third party suits that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such third party suits or claims by the Purchaser for indemnification, or any other claims contained in this Agreement, and (iii) to take other actions on behalf of any Seller Party as contemplated by this Agreement, the Seller Ancillary Agreements. Notwithstanding the foregoingDocuments, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decisionPurchaser Ancillary Documents, act, consent or instruction including the exercise of all rights granted to any Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers Party under this Agreement, the Seller Ancillary AgreementsDocuments, or the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Purchaser Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountDocuments.
(b) If at any time there is more than one Person appointed to serve as In the Seller Representative, any act of event that the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantorsbecomes unable to perform his responsibilities hereunder or resigns from such position, the Sellers shall, by election of the Sellers (or, if applicable, their respective heirs, legal representatives, successors and the Seller Representatives, and upon such act by assigns) who held a majority in interest of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections voting power of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered Company prior to the Seller GuarantorsClosing, the Sellers select another representative to fill such vacancy and such substituted representative shall be deemed to Acquiror. If at any time there is no Person acting as be the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination all purposes of this Agreement and the Escrow Agreement.
(c) The All decisions and actions by the Seller Representative acknowledges that it has read and understands this Section 13.18Representative, including the defense or settlement of any claims for which any Seller Parties may be required to indemnify the Purchaser pursuant to Article VIII hereof, shall be binding upon all of the Seller Parties, and xxxxxx accepts such appointment. Certain Sellers no Seller Party shall have entered into an engagement agreement the right to object, dissent, protest or otherwise contest the same.
(the “d) Each Seller Representative Engagement Agreement”Party agrees that:
(i) with he, she or it shall not have any cause of action against the Seller Representative to provide direction to for any action taken or not taken, decision made or instruction given by the Seller Representative in connection with its services under this Agreement, the Escrow Agreementexcept for fraud, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellersgross negligence, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action willful misconduct or omission bad faith by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement;
(ii) he, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence she or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend it shall indemnify and hold harmless the Seller Representative Group from and against any and all Damagesloss, losses, claims, liabilities, fees, costs, expenses liability or expense (including fees, disbursements the reasonable fees and costs expenses of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”counsel) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Escrow Seller Representative; provided, however, that no Seller shall be liable under this Section 9.16(d)(ii) in an amount in excess of the amount of the Purchase Price actually received by such Seller Party and its Affiliates pursuant to this Agreement;
(iii) the provisions of this Section 9.16 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies any Seller Party may have in connection with the transactions contemplated by this Agreement, the Seller Representative Engagement Agreement and Ancillary Documents or the Seller Purchaser Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from Documents;
(iv) the remedy at law for any distribution breach of the Adjustment Escrow Amount provisions of this Section 9.16 would be inadequate; and
(v) the provisions of this Section 9.16 shall be binding upon the successors and assigns of each Seller Party.
(e) Any decision, act, consent or Earn-Out Payment otherwise distributable to the Sellers at the time instruction of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant relating to this Agreement, the Escrow Agreement Seller Ancillary Documents, or the transactions contemplated hereby Purchaser Ancillary Documents shall constitute a decision for all Seller Parties, and shall be final, binding and conclusive upon the Seller Parties, and the Purchaser may rely upon any such decision, act, consent or thereby. Furthermore, instruction of the Seller Representative shall not be required to take any action unless as being the decision, act, consent or instruction of every Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsParty.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Repay Holdings Corp)
Seller Representative. (a) Each Shareholder Representative Services LLC is hereby appointed as the Seller Guarantor Representative, with full power and authority on each Seller Selling Equityholder’s behalf, to (i) pay each such Selling Equityholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (ii) receive, give receipt and disburse any funds received hereunder on behalf of or to each such Selling Equityholder, (iii) hold back from disbursement to all of Selling Equityholders collectively any such funds to the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law, (iv) execute and deliver on behalf of each such Selling Equityholder, all documents contemplated herein, and any amendment or waiver hereto, (v) negotiate, settle, compromise and otherwise handle all disputes with any Buyer Indemnified Party under this Agreement, including without limitation, disputes regarding any adjustment pursuant to Section 2.5 and any claims made by any Buyer Indemnified Party pursuant to ARTICLE X and (vi) give and receive notices on behalf of Selling Equityholders collectively, including without limitation, any notice of a claim for which indemnification is sought by Selling Equityholders collectively pursuant to ARTICLE X and (vii) do each and every act and exercise any and all rights which Selling Equityholders collectively are permitted or required to do or exercise under this Agreement. Selling Equityholders, by accepting the consideration payable to them hereunder, irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful grant unto said attorney-in-fact with and agent full power of substitution and authority to do on behalf of such Seller Guarantor and such Seller any perform each and all things, including executing any every act and all documents, which may be thing necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasetransactions contemplated hereby and, including: in the case of the Selling Optionholders, such power and authority (iincluding the right to pursue any Related Claims in such Selling Optionholder’s favor) receiving shall be assigned and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and exclusively vested in the Seller Ancillary Agreements; (iii) administering this Agreement Representative. Such agency and proxy are coupled with an interest, and are therefore irrevocable without the Seller Ancillary Agreements, including the initiation consent of holder. Selling Equityholders shall be bound by all actions taken and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable documents executed by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the other agreements contemplated hereby, and Buyer and the other Buyer Indemnified Parties shall be entitled to rely, with no duty of inquiry, on any action or decision of the Seller Ancillary AgreementsRepresentative. Notwithstanding After the foregoingClosing, notices or communications to or from the Seller Representative shall have no obligation constitute notice to act on behalf or from each of Selling Equityholders. Notwithstanding anything in this Section 11.16 or the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit if an issue or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) allegation arises under this Agreement or any Ancillary Document that affects the liability of only one (1) Seller Ancillary Agreement will (including an alleged breach of any representation and warranty or covenant by only one (1) Seller), such issue and all decisions related thereto shall be considered a payment dealt with and made, as applicable, by Acquiror to the Seller Guarantors in question and the Sellers. The powers, immunities and rights to indemnification granted to not the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative.
(b) If at any time there is more than one Person appointed In the event that the Seller Representative becomes unable to serve as perform the Seller Representative’s responsibilities or resigns from such position, any act of the Seller Representative will require Sellers which held, immediately prior to the act of Closing Date, a majority of the Seller Representatives which will Shares shall select another representative reasonably acceptable to Buyer to fill such vacancy and such substituted representative shall (i) be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, deemed to be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination all purposes of this Agreement and (ii) exercise the Escrow Agreementrights and powers of, and be entitled to the other benefits of, the Seller Representative.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind to any Selling Equityholder with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s its services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsany agreements ancillary hereto, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor Representative shall not be liable to any Selling Equityholder for any action or omission pursuant to the advice of counsel. Selling Equityholders agree, severally (and Sellers will indemnifynot jointly and severally) based on their Fully Diluted Pro Rata Share, defend and hold harmless to indemnify the Seller Representative Group from for, and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, to hold the “Seller Representative Expenses”) harmless against, any Loss incurred without finally adjudicated willful misconduct or gross negligence on the part of the Seller Representative, arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, including costs and expenses of successfully defending the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsagainst any claim of liability with respect thereto, in each case, case as such Loss is suffered or incurred. If not paid directly to the Seller Representative Expenses by the Selling Equityholders, any such Losses may be recovered by the Seller Representative from (i) the Representative Fund and (ii) the amounts in the Indemnity Escrow Fund at such time as remaining amounts would otherwise be distributable to the Selling Equityholders; provided, that while this section allows the Seller Representative to be paid from the aforementioned sources of funds, this does not relieve the Selling Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that nor does it prevent the Seller Representative shall not be required from seeking any remedies available to expend it at law or risk otherwise. The Seller Representative may consult with counsel of its own funds choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The indemnity obligations of this Section 11.16(c) shall survive the resignation, replacement or otherwise incur any financial liability in the exercise or performance removal of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative or the termination of this Agreement pursuant to Article IX.
(d) At the Closing, Buyer shall not be required deliver to take any action unless the Seller Representative has been provided with fundsthe Representative Fund, security or indemnities which, in its determination, are sufficient to protect be held to cover and reimburse the Seller Representative against the costsfees, expenses and liabilities which may be other monetary obligations incurred by the Seller Representative in performing connection with the carrying out by the Seller Representative of its duties under this Section 11.16. The Selling Equityholders will not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Seller Representative any ownership right that they may otherwise have had in any such actions.
(d) interest or earnings. For tax purposes, the Representative Fund shall be treated as having been received and voluntarily set aside by the Selling Equityholders at the time of Closing. The Seller Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund and is not responsible for any tax reporting or withholding with respect thereto. Any balance of the Representative Fund not incurred for such purposes shall be returned to the Selling Equityholders in accordance with their respective Fully Diluted Pro Rata Share. In the event that any amount is owed to the Seller Representative, whether for fees, expense reimbursement or indemnification, that is in excess of the Representative Fund, the Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuinereimbursed by Selling Equityholders proportionately in accordance with each such Person’s Fully Diluted Pro Rata Share, and (iii) Selling Equityholders agree to so reimburse the Seller Representative. Upon written notice from the Seller Representative to Selling Equityholders as to any such owed amount, including a reasonably assume that a signatory has proper authorization detailed description as to sign such owed amount, Selling Equityholders shall promptly deliver to the Seller Representative full payment of his, her or its Fully Diluted Pro Rata Share of such owed amount. [Signatures follow on behalf of the applicable Seller or other party.next page]
Appears in 1 contract
Samples: Share Purchase Agreement (Seacor Holdings Inc /New/)
Seller Representative. (a) Each Seller Guarantor irrevocably constitutes and each Seller irrevocably appoints the Seller Representative to act (and Seller Representative hereby accepts such appointment) as such Seller Guarantor’s and such Seller’s the exclusive agent and true and lawful attorney-in-in- fact with full power of substitution to do for and on behalf of such Seller Guarantor with full power of substitution, to act in the name, place, and stead of such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant with respect to this Agreement and the Escrow Agreement, and the taking by the Seller Ancillary AgreementsRepresentative of any and all actions and the making of any decisions required or permitted to be taken by the Seller Representative under this Agreement or the Escrow Agreement, including but not limited to the exercise of the power and authority to: (i) give and receive notices and communications under Section 2.5 and this Section 8.5 and the Escrow Agreement; (ii) object to claims for indemnification made by the Buyer Indemnified Parties under ARTICLE 7; (iii) administering this Agreement agree to, negotiate, enter into settlements and compromises of, and comply with court orders with respect to claims for indemnification made by the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claimsBuyer Indemnified Parties under ARTICLE 7; (iv) making determinations to settle agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any dispute with respect to the purchase price adjustments contemplated by other matters described in Section 2.3(b)2.5; (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and make payments to the Sellers pursuant to Article 12; (vi) agreeing to amendments in accordance with the terms of this Agreement, waivers of conditions and obligations under this Agreement and (vi) take all actions necessary or appropriate in the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions good faith judgment of the Seller Guarantor and Representative for the Sellers under this Agreement and accomplishment of the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsforegoing. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any other ancillary agreement, schedule, exhibit exhibit, or the Company Disclosure LetterSchedules. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors The power-of-attorney granted in this Section 8.5 and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities immunities, and rights to indemnification granted to the Seller Representative Group (as defined below) hereunder are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor theretoirrevocable, may be delegated by the Seller Representative and shall survive the delivery death or incapacity or dissolution of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act Seller. The identity of the Seller Representative will require and the act terms of the agency may be changed, and a majority successor Seller Representative may be appointed, from time to time (including in the event of the dissolution, death, disability or other incapacity of the Seller Representatives which will be binding upon Representative) by Sellers whose aggregate percentage interests of the Seller Guarantors, the Sellers and the Seller RepresentativesMembership Interests exceed 50%, and upon any such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as successor shall succeed the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement DateRepresentative hereunder. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and Agreement. No bond shall be required of the Escrow AgreementSeller Representative.
(cb) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Neither the Seller Representative to provide direction to the Seller Representative in connection with nor its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its membersequity holders, managers, directors, officers, contractorsagents, agents and or employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of shall be liable to the Sellers for any kind with respect to any action act done or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, omitted hereunder without gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.misconduct 66
(dc) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, any instrument reasonably believed to be genuine; (ii) rely upon any signature reasonably believed by it to be genuine, ; and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party. The Seller Representative shall not be liable for other parties’ forgeries, fraud, or false representations. The Seller Representative shall be authorized to engage, and to rely upon the advice and opinions of, legal counsel, accountants, or other administrative or professional advisors as Seller Representative may deem advisable to carry out its duties under this Agreement.
(d) The Seller Representative Expense Reserve shall be held by the Seller Representative in a segregated bank account and shall be used for the purposes of paying directly or reimbursing the Seller Representative for any Seller Representative Expenses incurred pursuant to this Agreement. The Seller Representative is not providing any investment supervision, recommendations, or advice and shall have no responsibility or liability for any loss of principal of the Seller Representative Expense Reserve other than as a result of its gross negligence or willful misconduct. The Seller Representative is not acting as a withholding agent or in any similar capacity in connection with the Seller Representative Expense Reserve, and has no Tax reporting or income distribution obligations. The Sellers will not receive any interest on the Seller Representative Expense Reserve and assign to the Seller Representative any such interest. As soon as reasonably determined by the Seller Representative that the Seller Representative Expense Reserve is no longer required to be withheld, the Seller Representative shall distribute the remaining Seller Representative Expense Reserve (if any) to the Sellers.
(e) A decision, act, consent, or instruction of the Seller Representative shall constitute a decision of all Sellers and shall be final, binding, and conclusive upon each Seller, and such Seller’s heirs, successors, and assigns as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate, or disaffirm the action of the Seller Representative taken in good faith under this Agreement are hereby waived. The Buyer may rely upon any decision, act, consent, or instruction of the Seller Representative as being the decision, act, consent, or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by the Seller Representative and any 67
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Flotek Industries Inc/Cn/)
Seller Representative. (a) Each Seller Guarantor The Selling Parties and each Seller the LLC Owners hereby irrevocably appoints Seller Representative constitute and appoint Xxxxxx X. Xxxxxxxxx (or a replacement reasonably acceptable to act Buyer) as such Seller Guarantor’s and such Seller’s exclusive agent and their true and lawful attorney-in-fact and agent (the “Seller Representative”) with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingto: (i) receiving and disbursing payments to be made receive the payment of the Purchase Price hereunder; (ii) receiving notices do and communications pursuant perform each and every act and thing necessary and requisite to be done on their behalf to consummate the transactions contemplated by this Agreement, including to execute and deliver the Escrow Agreement and the Seller Ancillary Agreementsother Transaction Documents; (iii) administering this Agreement accept on behalf of the Selling Parties service of process and the Seller Ancillary Agreements, including the initiation and resolution of any disputes notices required to be served on any Selling Party or claimsLLC Owner; (iv) making determinations to settle execute on behalf of any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b)Selling Party or LLC Owner any amendment or waiver hereto; and (v) resolvingtake all actions to be taken by the Selling Parties or LLC Owners under this Agreement, settling or compromising including to deliver notices to be served on Buyer by any such party and to control the defense and settlement of any and all claims for indemnification asserted by any Buyer Indemnified Party against any of the Seller Guarantors Selling Parties or the LLC Owners under Section 5.8 and the Sellers pursuant to Article 12; (vi) agreeing to amendments 6.1 of this Agreement, waivers of conditions .
(b) Each Selling Party and obligations under this Agreement and the Seller Ancillary Agreements; LLC Owner hereby agrees that: (viii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing in all acts, as contemplated by or deemed advisable matters in which action by the Seller Representative in connection with this Agreement, the Escrow Agreementis required or permitted, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of such Selling Party, notwithstanding any dispute or disagreement among any of the SellersSelling Parties or any of the LLC Owners, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in any Buyer Indemnified Party shall be entitled to rely on any and all action taken by the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement without any liability to, or obligation to inquire of, any Seller Ancillary Agreement will be considered a payment by Acquiror to of the Seller Guarantors and Selling Parties or LLC Owners, notwithstanding any knowledge on the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation part of any Seller and shall be binding on Buyer Indemnified Party of any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole such dispute or any fraction of his, her or its interest in the Adjustment Escrow Amount.
disagreement; (bii) If at any time there is more than one Person appointed notice to serve as the Seller Representative, any act delivered in the manner provided in Section 10.1, shall be deemed to be notice to all Selling Parties and LLC Owners for the purposes of this Agreement; (iii) the power and authority of the Seller Representative, as described in this Agreement, shall continue in full force until all rights and obligations of the Selling Parties under this Agreement shall have terminated, expired or been fully performed.
(c) Each Selling Party and LLC Owner agrees that, notwithstanding the foregoing, at the request of Buyer, such Selling Party or LLC Owner shall take all actions necessary or appropriate to consummate the transaction contemplated hereby individually on such Selling Party’s or LLC Owner’s own behalf, and delivery of each and every document required of any Selling Party or LLC Owner pursuant to the terms hereof.
(d) If the Seller Representative will require dies or becomes legally incapacitated, the act of LLC Owners holding a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act interests of Cambio Partners held by a majority LLC Owners as of the Seller Representatives, Acquiror will, Closing promptly shall designate in reliance thereon, be entitled writing to all benefits FTI and protections of this Section 13.18(b) as though such act were Buyer a single individual to replace the unanimous act of all Seller Representatives. Any deceased or legally incapacitated Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquirorhereunder. If at any time there is no Person acting as the shall not be a Seller Representative for any reason, or the Seller Guarantors and the Sellers will promptly LLC Owners fail to so designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the successor Seller Representative, with decisions made by the Seller(s) holding FTI or Buyer may petition a majority court of the shares of the Company Stock held by the Sellers immediately prior competent jurisdiction to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the appoint a Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for For purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement, Sellers hereby designate Yxxxxx Xx to serve as the sole and exclusive representative of Sellers (“Seller Representative”) from and after the Closing Date with respect to those provisions of this Agreement or the Escrow Agreement that contemplate action by Seller Representative; provided, however, that if Yxxxxx Xx at any time is unable, due to incapacity or otherwise, to serve as Seller Representative or resigns as Seller Representative, then Txxx Xx shall be the successor Seller Representative. The successor Seller Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to Seller Representative. The successor Seller Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Seller Representative, and the term “Seller Representative” as used herein shall be deemed to include the successor Seller Representative.
(cb) The Seller Representative acknowledges that it has read is hereby constituted and understands appointed as agent and attorney-in-fact for and on behalf of Sellers with respect to the performance of the duties of Seller Representative. This power of attorney and all authority hereby conferred are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of Law, whether by such Seller’s death, disability, protective supervision or any other event. All actions taken by Seller Representative under this Section 13.18Agreement or the Escrow Agreement shall be binding upon each Seller and its successor as if expressly confirmed and ratified in writing by such Seller, and xxxxxx accepts such appointment. Certain Sellers have entered into all defenses which may be available to an engagement agreement (Seller to contest, negate or disaffirm the “action of Seller Representative Engagement Agreement”) with taken in good faith under this Agreement or the Escrow Agreement are waived. Seller Representative shall promptly deliver to provide direction to the each Seller any notice received by Seller Representative concerning this Agreement. Without limiting the generality of the foregoing, Seller Representative has full power and authority, on behalf of each Seller and such Seller’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by Sellers in connection herewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with its services the consummation of the Transactions, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the Escrow Agreementdefense of claims, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative demand arbitration and its members, managers, directors, officers, contractors, agents comply with orders of courts and employees and any member awards of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind arbitrators with respect to any action such claims, and to take all actions necessary or omission by appropriate in the judgment of Seller Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) use the Reserve Account in accordance with the provisions of this Agreement and (vii) take all actions necessary or appropriate in the judgment of Seller Representative on behalf of Sellers in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: to (i) rely upon the Payment Schedule, (iiA) rely upon any signature believed by it him to be genuine, genuine and (iiiB) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
(c) Service by Seller Representative shall be without compensation except for the reimbursement by Sellers of out-of-pocket expenses of Seller Representative as specifically provided herein and the indemnification provided in Section 13.16(d) of this Agreement.
(d) Whether or not the Transactions are consummated, each Seller shall indemnify upon demand Seller Representative and its directors/managers, employees and agents, based on each Seller’s Pro Rata Share, from and against any and all actions, causes of Action, suits, losses, liabilities, damages and expenses (including reasonable legal fees and expenses of counsel to Seller Representative), except to the extent that any thereof result from the applicable Seller’s own gross negligence or willful misconduct, as determined by a court of competent jurisdiction. Without limitation of the foregoing, each Seller shall reimburse Seller Representative upon demand for such Seller’s Pro Rata Share of any costs or out-of-pocket expenses (including reasonable legal fees and expenses of counsel to Seller Representative) incurred by Seller Representative in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities, or any document contemplated by or referred to herein, to the extent that Seller Representative is not reimbursed through the Reserve Account or otherwise by Sellers for such expenses. This Section 13.16(d) shall survive the Closing, expiration or termination of the Agreement and the resignation or replacement of Seller Representative.
(e) Buyer shall be entitled to rely upon any actions taken by Seller Representative as the duly authorized action of Seller Representative on behalf of each Seller with respect to any matters set forth in this Agreement or the Escrow Agreement.
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Seller Representative. (aA) Each Sellers for themselves and their respective successors, assigns, heirs, executors and legal representatives hereby constitute and appoint, effective from and after the Closing Date, Xx. Xxxxxx as the agent and representative (the "Seller Guarantor Representative") of Sellers and each Seller irrevocably appoints Seller Representative their respective successors, assigns, heirs, executors and legal representatives to act as such their agent and representative for all purposes under this Agreement. In the event of the death, resignation, incapacity or refusal to act of Xx. Xxxxxx, Sellers hereby constitute and appoint Xx. Xxxxxxx as successor Seller Guarantor’s Representative. In the event of the death, resignation, incapacity or refusal to act of Xx. Xxxxxxx, Sellers shall promptly designate another individual to act as their Seller Representative under this Agreement. Such further successor Seller Representative shall be designated by Sellers by an instrument in writing executed by Sellers who held immediately prior to the Closing Date hold a majority of the Shares and such Seller’s exclusive agent appointment shall become effective as to the successor Seller Representative when such instrument shall have been delivered to any such proposed successor Seller Representative (and true accepted in writing) and lawful attorney-in-fact with full power a copy thereof received by Buyer.
(B) Sellers hereby authorize Seller Representative, on their behalf and in their name, without inquiry of substitution to do on behalf of such Seller Guarantor and such Seller any and all thingswithout additional approval from Sellers, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingto: (i) receiving initiate legal suits or arbitration proceedings against Buyer in the name of and disbursing payments to be made hereunderon behalf of Sellers; (ii) receiving receive all notices or documents given or to be given to Sellers by Buyer pursuant hereto or in connection herewith and communications pursuant to receive and accept service of legal process in connection with any suit or proceeding against Sellers arising under this Agreement and the Seller Ancillary AgreementsAgreement; (iii) administering this Agreement engage counsel, accountants and the Seller Ancillary Agreements, including the initiation other advisors on behalf of Sellers and resolution incur such other reasonable expenses on behalf of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby as Seller Representative may deem appropriate; (iv) give all notices hereunder to Buyer on behalf of all Sellers; (v) take such action on behalf of Sellers as Seller Representative may deem appropriate in respect of: (a) waiving any inaccuracies in the representations or warranties of Buyer contained in this Agreement or in any document delivered by Buyer pursuant hereto; (b) taking such other action as Sellers are authorized to take under this Agreement; (c) receiving all documents or certificates and therebymaking all determinations on behalf of Sellers required under this Agreement; (d) taking all such other action as Seller Representative may deem necessary or appropriate in connection with the administration of this Agreement and the transactions contemplated hereby; and (e) taking all such action as may be necessary after the Closing Date to carry out any of the transactions contemplated by this Agreement; and (vi) negotiate, compromise, settle and shall be final, binding and conclusive upon the Seller Guarantors and resolve on behalf of Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction claims against Buyer.
(C) The appointment of Seller Representative hereunder is irrevocable (except as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigationprovided below) and none of Acquiror or unconditional and any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment action taken by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror pursuant to the Seller Guarantors authority granted in this Section 9.19 shall be effective and absolutely binding on Sellers notwithstanding any contrary action of, or direction from, the Sellers. The powers, immunities except for actions taken by Seller Representative which are in bad faith, grossly negligent or unlawful, and rights to indemnification granted subject in all events to the Seller Representative Group are coupled with an interest and will right of all Sellers to be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding treated on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amounta pro rata basis.
(bD) If The Seller Representative may resign at any time there is more than one Person appointed by given notice to serve as Buyer and to the Seller Representativeother Sellers, any act which resignation shall be effective upon the appointment and qualification of a successor and the acceptance of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon appointment by such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representativessuccessor. Any Seller Representative may resign be discharged and replaced by another person to act as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative his or her successor for any reason, the Seller Guarantors and the reason or no reason by an instrument in writing signed by Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding at least a majority of the shares of the Company Stock held by the Sellers Shares immediately prior to the Agreement Date Closing.
(E) Buyer shall not be obliged to act as inquire into the Seller Representative and notify Acquiror in writing authority of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, and Buyer shall be fully protected in dealing with decisions made by the Seller(sSeller Representative in good faith.
(F) holding a majority In performing any of the shares of the Company Stock held by the Sellers immediately prior Seller Representative's duties under this Agreement, Seller Representative shall not incur any liability to the Agreement Dateother Sellers, except for liability caused by Seller Representative's bad faith, unlawful acts or gross negligence. The immunities and rights to indemnification shall survive the resignation or removal of the Accordingly, Seller Representative shall not incur any such liability for (i) any action that is taken or omitted in good faith regarding any member questions relating to the duties and responsibilities of Seller Representative under this Agreement, or (ii) any action taken or omitted to be taken in reliance upon any instrument that Seller Representative shall in good faith believe to be genuine, to have been signed or delivered by a proper person or persons and to conform with the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement.
(cG) The Seller Representative acknowledges that it has read and understands this Section 13.18Sellers shall, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreementon a pro rata basis, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group against, from and against in respect of any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) Losses arising out of or resulting from the performance of Seller Representative's duties hereunder or in connection with this Agreement (except for Losses arising from the bad faith, gross negligence or unlawful acts of Seller Representative’s execution ). In the event that any one or more Sellers are subjected to any Losses hereunder in an amount not pro rata with the other Sellers (in this clause (G), "other Sellers"), all of such other Sellers shall make contributions to such Sellers in such amounts and performance character so that after such contributions all Sellers bear pro rata burden for all Losses, except for Losses directly attributable to the bad faith, gross negligence or unlawful acts of any Seller, which Seller shall bear sole responsibility for such Losses. As used in this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, "pro rata" shall mean pro rata among Sellers in each case, proportion to their ownership of Shares as such Seller Representative Expenses are suffered or incurredreflected on Schedule 1-A attached hereto. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.------------
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor By the execution and delivery of this Agreement, each Seller of the Sellers hereby irrevocably constitutes and appoints Seller Representative to act Register GP, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful attorney-in-agent and attorney in fact (in such capacity, the “Seller Representative”) of the Sellers with full power of substitution to do on behalf of such Seller Guarantor act in the name, place and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation stead of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Sellers with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement Note and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor transactions contemplated hereby and Sellers will indemnify, defend and hold harmless thereby as the Seller Representative Group may deem appropriate, and to act on behalf of the Sellers in any litigation or other dispute involving this Agreement or any Transaction Document, do or refrain from doing all such further acts and against any things, and execute all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, such documents as the “Seller Representative Expenses”) arising out of shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and each Transaction Document, including the power:
(i) to act for the Sellers with regard to matters pertaining to the determination of the Purchase Price, the adjustment to the Purchase Price and pertaining to the indemnification referred to in this Agreement, including the power to settle any indemnity claim on behalf of the Sellers and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Seller Representative’s execution Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and performance each Transaction Document;
(iii) to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price or any amounts distributed under the Escrow Agreement or the Note;
(iv) to do or refrain from doing any further act or deed on behalf of the Sellers that the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or any Transaction Document as fully and completely as the Sellers could do if personally present;
(v) to receive service of process in connection with any claims under this Agreement or any Transaction Document; and
(vi) to accept notices in accordance with Section 12.02.
(b) Register GP hereby agrees and consents to its appointment as the Seller Representative pursuant to this Section 10.07, effective as of the date of this Agreement, the Escrow Agreement, . The appointment of the Seller Representative Engagement Agreement shall be deemed coupled with an interest and shall be irrevocable, and the Seller Ancillary AgreementsPurchaser and any other Person may conclusively and absolutely rely, in each casewithout inquiry, as such upon any action or decision of the Seller Representative Expenses are suffered or incurredin all matters referred to herein. Such All actions and decisions of Seller Representative Expenses may shall be recovered first, from any distribution of binding and conclusive on each Seller. All notices required to be made or delivered by the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable Purchaser to the Sellers at shall be made to the time Seller Representative for the benefit of distribution, the Sellers and second, directly from shall discharge in full all notice requirements of the Purchaser to the Sellers with respect thereto. The Sellers hereby confirm all that the Seller Representative shall do or cause to be done by virtue of its appointment as the Seller Representative of the Sellers. The Seller Representative shall act for the Sellers acknowledge that on all of the matters set forth in this Agreement and the Transaction Documents in the manner the Seller Representative believes to be in the best interest of the Sellers and consistent with the obligations under this Agreement and each Transaction Document, but the Seller Representative shall not be required responsible to expend the Sellers for any loss or risk its own funds or otherwise incur any financial liability in damages the exercise or Sellers may suffer by the performance of any by the Seller Representative of its powersduties under this Agreement or any Transaction Document, rightsother than any loss or damage arising from intentional violation of the law by the Seller Representative of its duties under this Agreement or any Transaction Document. If and solely to the extent, duties or privileges or after the final resolution of all claims for indemnification pursuant to this AgreementArticle X, there is any amount remaining in the Escrow Agreement or Account that is distributable to the transactions contemplated hereby or thereby. FurthermoreSellers, then the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, out-of-pocket expenses and liabilities which may be incurred by the Seller Representative as a result of its performance of its obligations under this Agreement and each Transaction Document up to an aggregate amount of $250,000 shall be reimbursed from the Escrow Account, in performing such actionsaccordance with the terms of the Escrow Agreement.
(dc) If any individual Seller should die or become incapacitated, if any trust or estate should terminate or if any other similar event should occur, any action taken by the Seller Representative pursuant to this Section 10.07 shall be valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Seller Representative or the Purchaser shall have received notice of such death, incapacity, termination or similar event. The Person appointed as Seller Representative may resign as such at any time on not less than five Business Days’ notice to the Sellers. A vacancy in the position of Seller Representative shall be entitled to: (i) rely upon filled by a Person determined by the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that holders of a signatory has proper authorization to sign on behalf majority in interest of the applicable Seller or other partyamount then held in the Escrow Account.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor Effective as of the Closing Date, each Seller, for itself or himself and each Seller for its or his successors and assigns, hereby irrevocably makes, constitutes and appoints Seller Representative Xx. Xxxxxxx to act as such Seller Guarantor’s for and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to any claim or matter arising on or after the purchase price adjustments contemplated by Section 2.3(bClosing Date under the Transaction Documents (the “Seller Representative”); (v) resolving, settling or compromising claims for indemnification asserted against and Xx. Xxxxxxx hereby accepts such appointment. Each Seller acknowledges that the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments appointment of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, Xx. Xxxxxxx as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are is coupled with an interest and will may not be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountrevoked.
(b) If at In furtherance of the appointment of the Seller Representative, each Seller, fully and without restriction: (i) agrees to be bound by all notices received and agreements and determinations made by and documents executed and delivered by the Seller Representative under the Transaction Documents; and (ii) authorizes the Seller Representative to (A) deliver to Buyer all certificates and documents to be delivered to Buyer by Sellers pursuant to the Transaction Documents, together with any time there is more than one Person appointed certificates and documents executed by Sellers and deposited with the Seller Representative for such purpose, (B) dispute or refrain from disputing any claim made by Buyer under the Transaction Documents, (C) negotiate and compromise any dispute which may arise under the Transaction Documents, (D) pay any amounts due Buyer from Sellers under the Transaction Documents, (E) exercise or refrain from exercising any remedies available to serve Sellers under the Transaction Documents, (F) sign any releases or other documents with respect to any such dispute or remedy, (G) waive any condition contained in the Transaction Documents, (H) give such instructions and do or refrain from doing such other things as the Seller Representative, any act in its sole discretion, deems necessary or appropriate to carry out the provisions of the Transaction Documents, (I) receive all amounts payable by Buyer to Sellers under the Transaction Documents on behalf of Sellers and, subject to the Seller Representative’s other responsibilities under this subsection, pay to each Seller such Seller’s Pro Rata Share (as defined below) of such amounts, (J) pay out of funds coming into the hands of the Seller Representative will require the act from Buyer all fees and expenses of a majority Sellers (and of the Seller Representatives which will be binding upon Representative acting in such capacity) incurred in connection with the Seller Guarantorstransactions contemplated by the Transaction Documents, including without limitation the fees and expenses of counsel, accountants, investment bankers and other professional advisors retained by or on behalf of Sellers in connection with such transactions, (K) retain such counsel, accountants and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting other professional advisors as the Seller Representative for any reasonreasonably deems necessary to assist it in the performance of its duties hereunder and pay the fees, the Seller Guarantors costs and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority expenses thereof out of the shares funds coming into the hands of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing (L) retain out of such determination. Following funds coming into the time that Acquiror is notified that hands of the Seller Representative has resigned and until from Buyer such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act amounts as the Seller Representative, with decisions in his sole discretion, deems appropriate to be held as reserves for expected or potential future expenses or liabilities of Sellers hereunder. Except for any obligations for which Sellers are severally, but not jointly, liable, payments made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of under this Agreement and the Escrow Agreementsubsection will be considered to be paid by all Sellers in accordance with their respective Pro Rata Share.
(c) The In the event of the resignation of the Seller Representative acknowledges that it has read and understands this Section 13.18Representative, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with or if the Seller Representative should cease to provide direction be a legal entity or die or become incapacitated, his successor will be Xxxxx Xxxxx, and Xxxxx Xxxxx hereby agrees to act in the capacity of the Seller Representative, and in the event of the resignation, incapacity or death of such successor Seller Representative, a successor Seller Representative will be appointed within 15 days of such event by Sellers owning a majority of the Shares immediately prior to the Closing (excluding from such calculation any such Shares owned by the Seller Representative). The decisions and actions of any successor Seller Representative will be, for all purposes, those of the Seller Representative in connection with its services under this Agreement, as if originally named herein. The death or incapacity of any Seller will not terminate the Escrow Agreement, authority and agency of the Seller Ancillary Agreements and the Representative. Any successor Seller Representative Engagement Agreement will provide Buyer with prompt written notice of its or his appointment.
(such Sellers, including their individual representatives, collectively hereinafter referred d) Buyer will be entitled to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and rely exclusively upon any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any communication given or other action or omission taken by the Seller Representative and will not be liable to Sellers or any other Person for any action taken or not taken in connection with reliance upon the Seller Representative’s services pursuant . Buyer will not be obligated to this Agreement, inquire as to the Escrow Agreement, authority of the Seller Representative Engagement Agreement and with respect to the Seller Ancillary Agreements, except in the event taking of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless any action that the Seller Representative Group from takes on behalf of Sellers.
(e) Sellers will jointly and severally indemnify the Seller Representative and hold it or him harmless against any and all Damagesloss, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs liability or expense incurred without gross negligence or bad faith on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) and arising out of or in connection with its or his duties as the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(df) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that Set forth on Exhibit D is a signatory has proper authorization to sign on behalf list of the applicable Seller or other partySellers together with their pro rata share of the Purchase Price (each such Persons’s share being a “Pro Rata Share”).
Appears in 1 contract
Samples: Stock Purchase Agreement (World Health Alternatives Inc)
Seller Representative. (a) Each of Sellers hereby irrevocably constitutes and appoints the Seller Guarantor Representative, acting as hereinafter provided, as its attorney-in-fact and each agent in its name, place and stead in connection with the provisions of this Agreement and the Escrow Agreement that contemplate action by the Seller irrevocably appoints Representative, and acknowledges that such appointment is coupled with an interest. By executing and delivering this Agreement, the Seller Representative hereby (i) accepts his appointment and authorization as Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact and agent in the name, place and stead of each of Sellers in accordance with full power the terms of substitution this Agreement, and (ii) agrees to perform his duties and obligations hereunder.
(b) Each Seller authorizes the Seller Representative in the name and on behalf of such Seller:
(i) to give and receive any notice required or permitted under this Agreement or the Escrow Agreement;
(ii) to interpret the terms and provisions of this Agreement and the documents to be executed and delivered by Sellers in connection herewith, including the Escrow Agreement;
(iii) to exercise any rights and to take any action required or permitted to be taken by the Seller Representative under this Agreement or the Escrow Agreement;
(iv) to execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;
(v) to dispute or to refrain from disputing any claim made by Parent and Purchaser under this Agreement or the Escrow Agreement;
(vi) to negotiate and compromise any dispute which may arise, and to exercise or refrain from exercising remedies available under this Agreement and the Escrow Agreement and to sign any releases or other documents with respect to any such dispute or remedy;
(vii) to authorize delivery to Purchaser of the Escrow Funds or any portion thereof in satisfaction of claims brought by Purchaser or Parent for Damages or to object to such deliveries;
(viii) to distribute the Escrow Funds and any earnings and proceeds thereon; and
(ix) to give such instructions and to do such other things and refrain from doing such other things as the Seller Representative shall deem necessary or appropriate to carry out the provisions of this Agreement and any other agreements, instruments and documents delivered or to be delivered by or on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read Each of Sellers agrees to be bound by all agreements and understands this Section 13.18determinations made, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreementagreements, the Escrow Agreementdocuments and instruments negotiated, the Seller Ancillary Agreements executed and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission delivered by the Seller Representative under this Agreement.
(d) Each of Sellers hereby expressly acknowledges and agrees that the Seller Representative is authorized to act in connection with its name and on its behalf. Notwithstanding any dispute or disagreement among Sellers and/or the Seller Representative’s services , Parent and Purchaser shall be entitled in good faith to rely on any and all action taken by the Seller Representative under this Agreement and the other agreements, instruments and documents to be delivered by or on behalf of Sellers pursuant to this AgreementAgreement without any liability to, or obligation to inquire of, any of Sellers. Parent and Purchaser are hereby expressly authorized in good faith to rely on the Escrow genuineness of the signatures of the Seller Representative, and upon receipt of any writing which reasonably appears to have been signed by the Seller Representative, Parent and Purchaser may act upon the same in good faith without any further duty of inquiry as to the genuineness of the writing.
(e) If Xxxxxx, as the Seller Representative, ceases to function for any reason whatsoever, then Xxxxx shall serve as the successor Seller Representative; if Xxxxx ceases to function as the Seller Representative for any reason whatsoever, then Sellers by mutual agreement may appoint a successor; provided, however, that if for any reason no successor has been appointed pursuant to the foregoing within thirty (30) days, then Parent and Purchaser shall have the right but not the obligation to petition a court of competent jurisdiction for appointment of a successor. Each successor Seller Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Seller Representative. Each successor Seller Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Seller Representative, and the term “Seller Representative” as used herein shall be deemed to include any successor Seller Representative.
(f) The authorization of the Seller Representative shall be effective until such rights and obligations under this Agreement terminate by virtue of the termination of any and all obligations of Sellers hereunder.
(g) Service by the Seller Representative shall be without compensation except for the reimbursement by Sellers of out-of-pocket expenses and indemnification specifically provided herein. Notwithstanding anything to the contrary contained in this Agreement, the Seller Representative Engagement Agreement shall have no duties or responsibilities except those expressly set forth herein, and the no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller Ancillary Agreements, except in the event of liability directly resulting from shall otherwise exist against the Seller Representative’s Fraud. The Seller Representative shall not be liable to Sellers for any acts or omissions under this Section 9.16 except to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the actions taken by the Seller Representative constituted gross negligence or willful misconduct. Each Seller agrees to indemnify and to save and hold harmless the Seller Representative of, from, against and in respect of any claim, action, cause of action, cost, liability or expense suffered or incurred by or asserted against the Seller Representative based upon or arising out of the performance by the Seller Representative of any act, matter or thing pursuant to the appointment herein made, except that no Seller shall be held or required to indemnify or to save or hold harmless the Seller Representative to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the actions taken by the Seller Representative constituted gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnifyRepresentative shall be protected in acting upon any notice, defend and hold harmless statement or certificate believed by the Seller Representative Group from to be genuine and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals to have been furnished by the appropriate Person and in connection acting or refusing to act in good faith on any matter. Except with seeking recovery from insurers)respect to fraud or willful misconduct, judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, neither the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from nor any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that agent employed by the Seller Representative shall not be required liable to expend Parent, Purchaser or risk its own funds or otherwise incur any financial liability in of their Affiliates solely by reason of the exercise or performance of any of its powers, rights, Seller Representative’s duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionshereunder.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Altisource Portfolio Solutions S.A.)
Seller Representative. (a) Each Seller Guarantor The Lenders and each Seller irrevocably appoints Seller Sellers hereby acknowledge and agree that Shareholder Representative to act Services LLC shall be constituted and appointed as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution (the foregoing Person and any other Person duly acting in such capacity as authorized hereunder from time to do time, the “Seller Representative”) for and on behalf of such each Seller Guarantor and such Seller any Lender to give and all thingsreceive notices and communications, including executing any to agree to, negotiate and all documentsenter into, which may be necessary, convenient or appropriate to facilitate the consummation on behalf of the Stock PurchaseSellers and Lenders, including: (i) receiving amendments, settlements, consents and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolvingIndemnification Escrow Agreement, settling or compromising any to take such claim; (viii) taking any other actions as authorized by this Agreement or the Indemnification Escrow Agreement, including actions in connection with the determination of the Final Adjustment Amount pursuant to Section 1.6 and Contingent Payments pursuant to Section 1.12 of this Agreement, and to take all actions necessary or appropriate in the judgment of the Seller Guarantor and Representative for the Sellers accomplishment of the foregoing. Such agency may be changed by a vote or written consent of the Lenders representing a majority-in-interest of the outstanding principal amount of all Indebtedness held by the Lenders as of immediately prior to the Effective Time (the “Majority Lenders”), from time to time upon not less than ten (10) days’ prior written notice to Parent. If at any time the Seller Representative resigns, dies or becomes incapable of acting, the Majority Lenders shall immediately choose another Person to act as the Seller Representative under this Agreement Agreement. In the event any such resignation shall be effective prior to a new Seller Representative being appointed and having confirmed his acceptance of such appointment in writing to Parent, Xxxx Xxxxxx shall serve as the Seller Ancillary Agreements; Representative until another Seller Representative shall have been approved by the Majority Lenders. All acts and (ix) performing all acts, as contemplated by or deemed advisable by decisions of the Seller Representative in connection with this Agreementthe settlement of any indemnification related claim shall be binding on all the Sellers, the Escrow Agreement, the Lenders and Seller Representative Engagement Agreement and the Seller Ancillary AgreementsIndemnified Persons. Notwithstanding the foregoing, Notices or communications to or from the Seller Representative shall have no obligation constitute notice to act on behalf or from each of the SellersSellers and Lenders.
(b) This appointment and power of attorney shall be deemed as coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be subject to termination by operation of law, except as expressly provided hereinwhether by the death, in incapacity, liquidation or dissolution of any of the Escrow AgreementSellers or Lenders or the occurrence of any other event or events, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes may not terminate this power of clarity, there are no obligations attorney with respect to any Seller or Lender or any Seller’s or Lender’s successors or assigns without the consent of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure LetterParent. A decision, act, consent or instruction of the Seller Representative in respect of any action under this Agreement or the Indemnification Escrow Agreement shall constitute a decision for of all of the Sellers and Lenders and any other Seller Guarantors and the Sellers under this AgreementIndemnified Person, the whether or not there was any prior consultation with or contrary instructions from any Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyor Lender, and shall be final, binding and conclusive upon the each such Seller Guarantors and Sellers Lender and their successors as if expressly ratified and confirmed in writingother Seller Indemnified Persons, and Acquiror, its Affiliates and Representatives Parent may conclusively rely upon any such decision, act, consent or instruction of the Seller Representative hereunder or under the Indemnification Escrow Agreement as being the decision, act, consent or instruction of each of the and every such Seller Guarantors and the Sellers (without investigation) Lender and none of Acquiror or any of its Affiliates or Representatives shall have other Seller Indemnified Persons. Parent is hereby irrevocably relieved from any liability to any Person (including any Seller Guarantor or Lender or any other Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacityIndemnified Persons) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the deathacts done by them in accordance with such decision, incompetenceact, bankruptcy consent or liquidation instruction of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary AgreementsIndemnification Escrow Agreement, except in the event of liability directly resulting from the Seller Representative’s Fraudgross negligence, gross negligence bad faith or willful misconduct. The Seller Guarantor Lenders shall, severally and Sellers will not jointly and in accordance with their respective Lender Percentage, indemnify, defend and hold harmless the Seller Representative Group and its successors and assigns from and against any and all Damagesclaims, demands, suits, actions, causes of action, losses, claimsdamages, obligations, liabilities, fees, costs, costs and expenses (including feesattorneys’ fees and court costs) (collectively, disbursements and costs “Representative Losses”) arising as a result of counsel and other skilled professionals and or incurred in connection with seeking recovery from insurers), judgments, fines any actions taken or amounts paid in settlement (collectively, omitted to be taken by the “Seller Representative Expenses”) arising out of or in connection with pursuant to the Seller Representative’s execution and performance terms of this Agreement, in each case as such Representative Loss is incurred; provided, however, that no Lender shall be liable to the Escrow Seller Representative for any amount in excess of the amount of proceeds actually received pursuant to the Agreement; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Seller Representative, the Seller Representative Engagement Agreement will reimburse the Lenders the amount of such indemnified Representative Loss attributable to such gross negligence or willful misconduct. If not paid directly to the Seller Representative by the Lenders or from the Expense Fund Amount, such losses, liabilities and expenses may be recovered by the Seller Representative, after the Expense Fund Amount has been exhausted, from the Indemnification Escrow Fund or Special Escrow Fund otherwise distributable (when distributable) to the Lenders (and not distributed or distributable to a Parent Indemnified Person) and from any Contingent Payments otherwise payable to the Sellers (and not subject to set-off) without the requirement of any consent or approval of Parent, the Surviving Company or any other Person (and the Seller Ancillary AgreementsRepresentative may provide for such payment in any instruction delivered to the Escrow Agent (in the case of an amount from the Indemnification Escrow Fund or Special Escrow Fund) or by written instruction to Parent). All of the indemnities, in each case, as such immunities and powers granted to the Seller Representative Expenses are suffered or incurredunder this Agreement shall survive the termination of this Agreement. Such The Expense Fund Amount shall be held by Seller Representative Expenses may be recovered first, from any distribution as agent and for the benefit of the Adjustment Sellers and Lenders in a segregated client bank account and shall be used solely for the purposes of paying directly or reimbursing Seller Representative for any Representative Losses pursuant to this Agreement. The Sellers and Lenders shall not receive interest or other earnings on the Expense Fund Amount. The Seller Representative shall, at such time as it determines in its sole discretion after the Indemnification Escrow Fund has been released and all pending matters have been resolved, distribute any amount remaining in the Expense Fund Amount or Earn-Out Payment otherwise distributable to Parent for distribution to the Sellers or Lenders in accordance with Section 1.13 and the instructions by the Seller Representative which Parent and the Surviving Company may conclusively rely upon. For Tax purposes, the Expense Fund Amount shall be treated as having been received and voluntarily set aside by the Sellers and Lenders at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsClosing.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Merger Agreement (Luminex Corp)
Seller Representative. 19.1 The Sellers and the Warrantors hereby appoint Xxxxxx Xxxxxxxxx to act as the agent of the Sellers and the Warrantors with full power to:
(a) Each Seller Guarantor without limitation, resolve all questions and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: disputes concerning:- (i) receiving adjustment of the Purchase Price pursuant to Schedules 9 and disbursing payments to be made hereunder10; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreementsany Claims or indemnities; (iii) administering this Agreement the release of funds from the Working Capital Retention Account and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claimsEscrow Retention Account; (iv) making determinations to sign all necessary documentation and to negotiate and/or settle any dispute disputes, Claims or indemnities and deal with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative matter howsoever arising in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement agreement and the transactions contemplated hereby except in respect of a Claim relating to clause 10 or the Warranties contained in paragraphs 1, 2.2 and thereby2.6 of Schedule 5; and (v) appoint, instruct and shall be final, binding and conclusive upon pay professional advisers including by the Seller Guarantors and Sellers and their successors use of funds in the Working Capital Retention Account and/or the Escrow Retention Account as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller pursuant to clause 4.17 in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.his sole discretion deems fit;
(b) If at any time there is more than one Person appointed to serve take such actions and execute such documents on the Sellers’ and the Warrantors’ behalf in connection with this agreement and the Escrow Agreement as the Seller Representative, in his or her sole discretion, deems proper;
(c) enforce the rights of the Sellers and the Warrantors under this agreement and the other Transaction Documents to which they or any act of them are or is a party; and
(d) perform all other functions of the Seller Representative will require under this agreement, the act of a majority Escrow Agreement and any other Transaction Document which refers thereto.
19.2 The Buyer shall be fully entitled to rely on the acts and agreements of the Seller Representatives which will Representative as the acts and agreements of the Sellers, or the Warrantors, as appropriate. The Buyer shall not be binding upon required to inquire with respect to the distribution of any payment made to the Seller GuarantorsRepresentative hereunder or under the Tax Covenant or the Escrow Agreement(s).
19.3 For the purposes of clause 20, other than in respect of claims under clauses 3.2, 10 or 11 of the agreement, or paragraph 1 of Schedule 5, or obligations which relate to title to a particular Seller or Sellers’ shares in the Company under paragraph 2.2 or 2.6 of Schedule 5, notice to the Seller Representative addressed as set out in clause 20 shall be notice to all the Sellers or all the Warrantors, as the context may require, and any notice referred to in clause 20.3 shall be signed by or on behalf of all of them. Any other notice signed by or on behalf of the Seller Representative shall when served in accordance with clause 20, take effect as a notice given by all the Sellers or all the Warrantors, as the context may require.
19.4 In the event that the Seller Representative resigns or ceases to function in such capacity for any reason whatsoever, then the Seller Representative shall, or, failing such appointment, the Sellers and the Seller RepresentativesWarrantors shall, appoint a successor located in England and upon notifying the Buyer of such act by a majority of appointment, such successor shall become the Seller Representatives, Acquiror will, in reliance thereon, be entitled to Representative for all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting purposes hereunder with full power as the Seller Representative for any reason, in accordance with his terms of appointment set out above and until such time the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior Buyer shall be entitled to the Agreement Date to act as assume that his or her predecessor remains the Seller Representative for all purposes hereunder unless the predecessor has died or is incapacitated. If a Seller Representative dies or is incapacitated or becomes at any time located outside England, the Sellers’ address for service under clause 20 for the purposes of clause 19.3 shall be that of the Sellers’ Solicitors’ at Xxxxx Xxxxx, 00 Xxxxxxx Xxxxxx, London EC2V 7NG or such other address in London as may be notified to the Buyer from time to time for this purpose. Items served at this address must be marked for the personal attention of Xxxxxx Xxxxx and notify Acquiror Xxxxxx Xxxxxx.
19.5 The Sellers (except the Seller Representative):-
19.5.1 jointly and severally undertake to indemnify and keep indemnified the Seller Representative fully against all actions, claims, losses, demands, costs, expenses, damages or liabilities (including without limitation all legal and other professional costs and expenses and any costs and expenses incurred in writing enforcing this indemnity) which the Seller Representative suffers sustains or incurs as a result of such determination. Following his appointment as Seller Representative pursuant to this clause or as a result of any action taken by him (or as a result of him refraining from taking any action) in good faith in his capacity as Seller Representative, including without limitation in respect of fulfilment of his obligations as Seller Representative under this agreement and the Transaction Documents;
19.5.2 undertake to ratify and confirm whatever the Seller Representative does or purports to do in good faith in his role as Seller Representative;
19.5.3 undertake not to pursue any claim against the Seller Representative in relation to his conduct as Seller Representative;
19.5.4 hereby waive to the fullest extent permitted by law any claim any or all of them may at any time that Acquiror is notified have against the Seller Representative in his capacity as Seller Representative; and
19.5.5 confirm that the Seller Representative has resigned and until such time as a new Person is designated owes them no duty of care other than simply to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementgood faith.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Exhibit (Ems Technologies Inc)
Seller Representative. (ai) Each Seller Guarantor Seller, for itself or himself and each Seller for its or his successors and assigns, hereby irrevocably makes, constitutes and appoints the Seller Representative to act as such Seller Guarantor’s for and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling any claim or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services matter arising under this Agreement, the Escrow Agreement, and each other agreement, document, certificate and instrument to be executed by any Seller at or prior to the Seller Ancillary Agreements Closing (the “Transaction Documents”), and the Seller Representative Engagement Agreement (hereby accepts such Sellers, including their individual representatives, collectively hereinafter referred to as appointment. Each Seller acknowledges that the “Advisory Group”). The appointment of the Seller Representative is coupled with an interest and its members, managers, directors, officers, contractors, agents and employees and any member may not be revoked.
(ii) In furtherance of the Advisory Group appointment of the Seller Representative, each Seller, fully and without restriction: (collectively, A) agrees to be bound by all notices given and received and agreements and determinations made by and documents executed and delivered by the “Seller Representative Group”under the Transaction Documents; and (B) will incur no liability of authorizes the Seller Representative to (1) deliver to Buyer all certificates and documents to be delivered to Buyer by Sellers pursuant to the Transaction Documents, together with any kind certificates and documents executed by Sellers and deposited with the Seller Representative for such purpose, (2) dispute or refrain from disputing any claim made by Buyer under the Transaction Documents, (3) negotiate and compromise any dispute which may arise under the Transaction Documents, (4) pay any amounts due Buyer from Sellers under the Transaction Documents, (5) exercise or refrain from exercising any remedies available to Sellers under the Transaction Documents, (6) sign any releases or other documents with respect to any action such dispute or omission remedy, (7) waive any condition contained in the Transaction Documents, (8) give such notices and instructions and do or refrain from doing such other things as the Seller Representative, in its sole discretion, deems necessary or appropriate to carry out the provisions of the Transaction Documents, (9) petition the Escrow Agent for the release of any or all funds due to Sellers under the Escrow Agreement and, subject to the Seller Representative's other responsibilities under this subsection, pay to each Seller such Seller's Pro Rata Share of such funds, (10) receive all amounts payable by Buyer to Sellers under the Transaction Documents on behalf of Sellers and, subject to the Seller Representative's other responsibilities under this subsection, pay to each Seller such Seller's Pro Rata Share of such amounts, (11) pay out of funds coming into the hands of the Seller Representative from Buyer or the Escrow Agent all fees and expenses of Sellers (and of the Seller Representative acting in such capacity) incurred in connection with the transactions contemplated by the Transaction Documents, including the fees and expenses of counsel, accountants, investment bankers and other professional advisors retained by or on behalf of Sellers in connection with such transactions, (12) retain such counsel, accountants and other professional advisors as the Seller Representative reasonably deems necessary to assist it in the performance of its duties hereunder and pay the fees, costs and expenses thereof out of the funds coming into the hands of the Seller Representative and (13) retain out of funds coming into the hands of the Seller Representative from Buyer or the Escrow Agent such amounts as the Seller Representative, in its sole discretion, deems appropriate to be held as reserves for expected or potential future expenses or Liabilities of Sellers hereunder. Except for any obligations for which Sellers are severally, but not jointly, liable, payments made by the Seller Representative under this subsection will be considered to be paid by all Sellers in connection accordance with their respective Pro Rata Shares.
(iii) If the Seller Representative resigns, ceases to be a legal entity, dies or becomes incapacitated, its or his successor will be appointed within fifteen (15) days of such event by Sellers owning a majority of the Interests immediately prior to the Closing. The decisions and actions of any successor Seller Representative will be, for all purposes, those of the Seller Representative as if originally named herein. The death or incapacity of any Seller will not terminate the authority and agency of the Seller Representative’s services pursuant . Any successor Seller Representative will provide Buyer with prompt written notice of its or his appointment.
(iv) Buyer will be entitled to this Agreement, the Escrow Agreement, rely exclusively upon any communication given or other action taken by the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except will not be liable to Sellers or any other Person for any action taken or not taken in the event of liability directly resulting from reliance upon the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers Buyer will indemnify, defend and hold harmless not be obligated to inquire as to the authority of the Seller Representative Group from with respect to the taking of any action that the Seller Representative takes on behalf of Sellers.
(v) Sellers will, severally and not jointly in accordance with their respective Pro Rata Shares, indemnify the Seller Representative and hold it or him harmless against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs Adverse Consequences incurred without gross negligence or bad faith on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) and arising out of or in connection with its or his duties as the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor Bxxxx Xxxxxxx is hereby appointed by each of the Members (and each Seller irrevocably appoints Seller Representative to act their successors and assigns) as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do (the “Seller Representative”) for and on behalf of each of such Seller Guarantor and such Seller any and all thingslegal entities, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving to enter into and disbursing payments perform the Escrow Agreement, to be made hereunder; authorize the distribution of cash from the Escrowed Funds in satisfaction of claims pursuant to this Agreement, to object to such distributions, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the reasonable judgment of the Seller Representative for the accomplishment of the foregoing, (ii) receiving notices and communications pursuant to take any other action expressly delegated to the Seller Representative under the other terms of this Agreement and the Seller Ancillary Agreements; (iii) administering to execute any amendment, waiver or consent of this Agreement and or the Escrow Agreement. Any notice to the Seller Ancillary Agreementsrequired or permitted under this Agreement may be satisfied by notice to the Seller Representative.
(b) The Seller Representative may be changed by the Beneficial Owners from time to time upon not less than thirty (30) days prior written notice to the Acquiror; provided, including however, that the initiation Seller Representative may not be removed unless Beneficial Owners indirectly holding at least two-thirds interest in the Escrowed Funds agree to such removal and to the identity of the substituted seller representative. Any vacancy in the position of Seller Representative due to the death, disability, or resignation upon 30 days notice, of the Seller Representative will be filled by approval of the Beneficial Owners indirectly holding a majority in interest of the Escrowed Funds. No bond shall be required of the Seller Representative. The Seller Representative will have the right to recover from the Escrowed Fund, subsequent to the satisfaction of any pending claim against the Escrowed Fund but prior to any distribution of the Escrowed Fund to the Seller, reasonable fees and expenses incurred in connection with his duties as Seller Representative in relation to the resolution of any disputes or claims; (iv) making determinations dispute. In the event the Escrowed Funds are insufficient to settle any dispute with respect to satisfy the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors reasonable fees and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable expenses incurred by the Seller Representative in connection with this Agreement, the Escrow Agreementhis duties as such, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative Beneficial Owners shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements jointly and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as severally indemnify the Seller Representative for any reason, the Seller Guarantors such reasonable fees and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementexpenses.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointmentshall not be liable for any act done or omitted hereunder as the Seller Representative. Certain Sellers have entered into an engagement agreement (the “The Seller Representative Engagement Agreement”) with shall severally indemnify the Seller Representative to provide direction to and hold the Seller Representative in connection with its services under this Agreementharmless against any loss, liability or expense incurred without bad faith or willful misconduct on the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member part of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreementacting in such capacity, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the acceptance or administration of the Seller Representative’s execution duties hereunder, including the reasonable fees and performance expenses of this Agreementany legal counsel retained by the Seller Representative. Any Party dealing with the Seller Representative is entitled to rely on the actions taken by, the Escrow Agreementand consents and approvals given by, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsRepresentative.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Purchase Agreement (Macquarie Infrastructure CO LLC)
Seller Representative. To facilitate the implementation of the Agreement and the Transactions, each Seller hereby does irrevocably authorize and appoint Christina Corley as seller representative (the "Seller Representative") xx xxxx xxx xctions set forth in clause (a) Each Seller Guarantor and each Seller irrevocably appoints below:
(a) The Seller Representative shall have authority to act as such Seller Guarantor’s for and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Sellers with respect to the purchase price adjustments contemplated by Section 2.3(b); following matters:
(vi) resolving, settling to receive notices in accordance with this Agreement;
(ii) to enter into agreements pursuant to which revenues or compromising claims for indemnification asserted against expenses will be included or excluded from the Seller Guarantors and calculation of EBITDA calculated hereunder;
(iii) on behalf of the Sellers pursuant to Article 12; resolve the Adjustment Amount Calculation;
(viiv) agreeing to amendments of this Agreementnegotiate, waivers of conditions determine, defend and obligations settle any disputes that may arise under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement; and Provided, however, that the Escrow Agreement, Purchaser can rely on any instructions of or any consents executed by the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act as binding on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers for all purposes under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the The Seller Representative will require the act of a majority of the Seller Representatives which will shall not be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror willliable to any person or entity for any action taken or any omission to act, in reliance thereongood faith, be entitled to all benefits and protections of this Section 13.18(b) in connection with their responsibilities as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of under this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read may not resign prior to eighteen (18) months following the Closing without the prior written consent of the Purchaser. Upon any such resignation, the Sellers (acting by written consent of Sellers who held of record at least a majority of the shares of Company Stock outstanding immediately prior to the Closing Date) shall promptly appoint a new Seller Representative to replace such resigning Seller Representative with the same powers and understands this Section 13.18duties as such resigning Seller Representative, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with if the Seller Representative or any successor shall die or become unable to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to act as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event a replacement shall promptly be appointed by a writing signed by Sellers who held of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution record at least a majority of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to shares of Company Stock outstanding immediately prior the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsClosing Date.
(d) The If the Sellers should fail to appoint a new Seller Representative as provided in this Section 9.8 within thirty (30) days following the resignation, death or inability to act of the current Seller Representation or its successor, the parties agree that the Seller with the largest allocation of Base Purchase Price as provided in the Allocation Schedule (other than the Seller that was the Seller Representative being replaced thereof) shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it deemed to be genuinethe Seller Representative for purposes of this Agreement until such Seller Representative resigns, and (iii) reasonably assume that a signatory has proper authorization dies or is unable to sign on behalf of the applicable Seller or other partyact.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zones Inc)
Seller Representative. (a) Each Seller Guarantor By virtue of the execution and delivery of this Agreement, each Seller irrevocably appoints Seller Representative of the Selling Securityholders (and, prior to act the Closing, the Company) shall be deemed to have agreed to appoint [***] as such Seller Guarantor’s and such Seller’s exclusive its representative, agent and true and lawful attorney-in-fact with full power of substitution to do fact, as the Seller Representative for and on behalf of the Selling Securityholders and Optionholders (and, prior to the Closing, the Company) for purposes of acting in the name and stead of such Seller Guarantor Selling Securityholder and such Seller any Optionholders in connection with this Agreement and all thingsthe Related Agreements, including executing (i) giving and receiving notices and communications and acting on the Selling Securityholders’ behalf hereunder for all purposes in connection with this Agreement and the Related Agreements, (ii) employing legal counsel on behalf of the Selling Securityholders, (iii) paying any legal, accounting, investment banking, or other fees and expenses incurred by the Seller Representative on the Selling Securityholders’ behalf in consummating the Transactions, (iv) authorizing payment to any Indemnified Party, (v) objecting to such payments, (vi) prosecuting, defending, negotiating, or settling claims arising under this Agreement, (vii) demanding arbitration and complying with orders of courts and awards of arbitrators with respect to such claims, and (viii) making, executing, acknowledging and delivering all documentssuch contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions, which the Seller Representative, in its sole discretion, may consider necessary or proper in the best interests of the Selling Securityholders and Optionholders in connection with or to carry out the terms of this Agreement, as fully as if such Selling Securityholders and Optionholders were personally present and acting. Such agency may be necessarychanged by the Selling Securityholders and Optionholders from time to time upon not less than [***] prior written notice to Purchaser; provided, convenient or appropriate however, that the Seller Representative may not be removed unless Selling Securityholders and Optionholders entitled to facilitate the consummation two-thirds of the Stock PurchasePurchase Price agree to such removal and to the identity of the substituted agent. No bond shall be required of the Seller Representative. Notices or communications to or from the Seller Representative shall constitute notice to or from the Selling Securityholders and Optionholders (and, includingprior to the Closing, the Company).
(b) The Seller Representative shall not be liable for any act done or omitted hereunder as the Seller Representative except in the case of willful misconduct, fraud or gross negligence by the Seller Representative. The Seller Representative will not be deemed to be a trustee or other fiduciary on behalf of any Selling Securityholder, Optionholders or any other Person, nor will the Seller Representative have any liability in the nature of a trustee or other fiduciary. The Seller Representative makes no representation or warranty as to, nor will the Seller Representative be responsible for or have any duty to ascertain, inquire into or verify: (i) receiving and disbursing payments to be any statement, warranty or representation made hereunderin or in connection with this Agreement or any other Related Agreements; (ii) receiving notices the performance or observance of any of the covenants or agreements of Selling Securityholders and communications pursuant to Optionholders under this Agreement and the Seller Ancillary Agreement, or any other Related Agreements; or (iii) administering this Agreement and the Seller Ancillary Agreementsgenuineness, including the initiation and resolution of any disputes legality, validity, binding effect, enforceability, value, sufficiency, effectiveness or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments genuineness of this Agreement, waivers any other Related Agreements, or any other instrument or writing furnished in connection herewith or therewith. The Seller Representative will not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, facsimile or similar writing) believed by it to be genuine and to be signed or sent by the proper party or parties.
(c) The Seller Representative may perform its duties through sub-agents and attorneys-in-fact and will have no liability for any acts or omissions of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; sub-agent or attorney if selected by it with reasonable care. The Seller Representative may consult with legal counsel, independent public accountants and other experts selected by it and will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(viiid) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by The Selling Securityholders shall indemnify the Seller Representative in connection with this Agreement, the Escrow Agreement, and hold the Seller Representative Engagement Agreement and harmless against any loss, liability or expense incurred without gross negligence or bad faith on the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations part of the Seller Representative and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties hereunder, including the reasonable fees and expenses of any ancillary agreement, schedule, exhibit or legal counsel retained by the Company Disclosure LetterSeller Representative. A decision, act, consent or instruction of the Seller Representative Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision for all of the Seller Guarantors Selling Securityholders and Optionholders (and, prior to the Sellers under this AgreementClosing, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Company) and shall be final, binding and conclusive upon the Seller Guarantors Selling Securityholders (and, prior to the Closing, the Company); and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives the Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and Selling Securityholders (and, prior to the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Closing, the Company). The Purchaser is hereby relieved from any liability to any Seller Guarantor person for any acts done by them in accordance with such decision, act, consent or any Seller as a result instruction of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors Representative.
(e) Each Selling Securityholder and the Sellers. The powersOptionholder shall pay or reimburse, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding based on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest respective Pro Rata Share, the Seller Representative, upon presentation of an invoice, for all reasonable costs and expenses of the Seller Representative (including fees and expenses of counsel to the Seller Representative) in connection with: (i) the Adjustment Escrow performance and enforcement of this Agreement, any other Related Agreements and any other document delivered pursuant hereto and/or the protection or preservation of the rights of each Selling Securityholder, Optionholder and/or the Seller Representative against Purchaser, or any of their respective assets, and (ii) any amendment, modification or waiver of any of the terms of this Agreement, any other Related Agreements or any other document delivered pursuant hereto (whether or not any such amendment, modification or waiver is signed or becomes effective). Such amounts will first be paid out of the Representative Fund Amount.
(bf) If Each Selling Securityholder and Optionholder acknowledges that he, she or it has, independently and without reliance upon the Seller Representative or any other Selling Securityholder or Optionholder, and based on such documents and information as it has deemed appropriate, made its own legal analysis and decision to enter into this Agreement. Each Selling Securityholder and Optionholder also acknowledges that he, she or it, independently and without reliance upon the Seller Representative or any other Selling Securityholder or Optionholder, and based on such documents and information as he, she or it deems appropriate at the time, will continue to make his, her or its own decisions in taking or not taking any action under this Agreement.
(g) The Seller Representative may resign at any time there is more than one Person by giving notice thereof to the Selling Securityholders. Upon any such resignation, a majority of the Selling Securityholders and Optionholders (based on their respective Percentage Interests) shall appoint a successor Seller Representative. If no successor Seller Representative has been appointed by Selling Securityholders and Optionholders, and has accepted such appointment, within [***] after the retiring Seller Representative gives notice of resignation, then the retiring Seller Representative, on behalf of Selling Securityholders and Optionholders, may appoint a successor Seller Representative, which may be any Selling Securityholder. Upon the acceptance of its appointment as the Seller Representative hereunder by a successor Seller Representative, such successor Seller Representative will thereupon succeed to serve and become vested with all the rights and duties of the retiring Seller Representative, and the retiring Seller Representative will be discharged from its duties and obligations hereunder. After the retiring Seller Representative’s resignation hereunder as the Seller Representative, the provisions of this Agreement will inure to its benefit as to any act actions taken or omitted to be taken by it while it was the Seller Representative.
(h) This Section 7.10 (Seller Representative) sets forth all of the duties of the Seller Representative will require the act of a majority of the Seller Representatives which with respect to any and all matters pertinent hereto. No implied duties or obligations will be binding upon read into this Agreement or the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Escrow Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as against the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal obligations of the Seller Representative or any member of the Advisory Group hereunder and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses only those expressly set forth herein and liabilities which may be incurred by the Seller Representative in performing such actionstherein.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor By the execution and delivery of this Agreement, Company and each Seller and, by execution and delivery of an Option Termination Agreement, each Former Option Holder hereby irrevocably appoints Seller Representative to act constitute and appoint Xx. Xxxxx Xxx as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of such Seller and Former Option Holder with full power powers of substitution to do on behalf act in the name, place and stead of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to Former Option Holder in connection with this Agreement under the terms and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments provisions of this Agreement, waivers of conditions as the same may be from time to time amended, and obligations under this Agreement to do or refrain from doing all such further acts and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 things, and resolving, settling or compromising any to execute all such claim; (viii) taking any other actions documents on behalf of the Seller Guarantor Sellers and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all actsFormer Option Holders, if any, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) to agree upon or compromise any matter related to the calculation of any adjustments, under this Agreement;
(ii) to direct the distribution of the Purchase Price;
(iii) to act for the Sellers and Former Option Holders with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of the SellersSellers and Former Option Holders any indemnification claim made by or against the Sellers or Former Option Holders, except as expressly provided herein, if any;
(iv) to act for the Sellers and Former Option Holders with respect to all post-Closing matters including pursuant to Section 12 and including to consent to the payment of funds in the Escrow Account to Purchaser and/or to petition the Escrow Agent for the release of any or all funds due the Sellers and Former Option Holders under the Escrow Agreement;
(v) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of the Sellers and Former Option Holders in the reasonable judgment of the Seller Representative, shall be taken in the same manner with respect to all the Sellers and Former Option Holders unless otherwise agreed by each of the Sellers and Former Option Holders who is subject to any disparate treatment of a potentially adverse nature;
(vi) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in his sole discretion, deems necessary or advisable in the Seller Ancillary Agreements and in performance of his duties as the Seller Representative Engagement Agreementand to rely on their advice and counsel;
(vii) to retain a portion of the Purchase Price as a reserve against the payment of expenses incurred in his capacity as the Seller Representative;
(viii) to sign any releases or other documents with respect to and dispute or remedy arising under the Transaction Documents; and
(ix) to do or refrain from doing any further act or deed on behalf of the Sellers and Former Option Holders which the Seller 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 Sellers and Former Option Holders could do if personally present and acting. Without limiting the foregoing, after the Closing Seller Representative shall take the actions to be taken by the Sellers under Sections 12 and for purposes of clarity, there are no obligations 24 hereof.
(b) The appointment of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are deemed coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor theretoirrevocable, and shall survive the delivery of an assignment by any Seller of the whole or other Person may conclusively and absolutely rely, without inquiry, upon any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act actions of the Seller Representative will require as the act acts of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and Former Option Holders hereunder and under the Option Termination Agreements appointing the Seller Representatives, Representative in all matters referred to in this Agreement. Each of Company and upon Sellers and Former Option Holders appointing the Seller Representative hereby ratifies and confirms all that the Seller Representative shall do or cause to be done by virtue of such act by a majority Seller Representative’s appointment as Seller Representative of the Sellers and Former Option Holders. The Seller RepresentativesRepresentative shall act for the Sellers and Former Option Holders appointing the Seller Representative on all of the matters set forth in this Agreement in the manner the Seller Representative believes to be in the best interest of the Sellers and Former Option Holders but the Seller Representative shall not be responsible to the Company nor any of the Sellers or Former Option Holders for any loss or damage that the Company or any of the Sellers or Former Option Holders may suffer by reason of the performance by the Seller Representative of such Seller Representative’s duties under this Agreement, Acquiror willany Option Termination Agreement and any other agreement appointing such Seller Representative, other than loss or damage arising from willful misconduct or fraud in reliance thereon, the performance of such Seller Representative’s duties under this Agreement.
(c) Each of the Sellers and Former Option Holders appointing the Seller Representative hereunder and under any Option Termination Agreement hereby expressly acknowledges and agrees that any Person shall be entitled to rely on any and all benefits and protections of this Section 13.18(b) as though such act were action taken by the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at under this Agreement without liability to, or obligation to inquire of, any time by written notice delivered to the Seller Guarantors, of the Sellers and to AcquirorFormer Option Holders. If at any time there is no Person acting as the Seller Representative resigns or ceases to function in such capacity for any reasonreason whatsoever, then the successor Seller Guarantors and Representative shall be the Person appointed by the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding and Former Option Holders that held a majority of the shares of the Company Common Stock held by the Sellers outstanding, or subject to outstanding options, immediately prior to the Agreement Date Effective Time; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Seller, who as of the date and time immediately prior to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writingEffective Time, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(sheld more than five percent (5%) holding a majority of the shares of Company Common Stock outstanding or subject to outstanding options shall have the right to petition a court of competent jurisdiction for appointment of a successor Seller Representative. The Company Stock held by and the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of Former Option Holders appointing the Seller Representative or any member of the Advisory Group do hereby jointly and the Closing and/or any termination of this Agreement severally agree to indemnify and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with hold the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses Loss (including without limitation attorneys’ fees) reasonably incurred or suffered as a result of the performance of such Seller Representative’s duties under this Agreement, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) except for any such liability arising out of the gross negligence or in connection with willful misconduct of the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor TA, Marshall and each Seller irrevocably appoints Seller Representative to act hereby irrevoxxxxx xxnstitute and appoint Don Marshall, with full power of substxxxxxxx xxx re-substitution, as such Seller Guarantor’s its and such Seller’s exclusive agent and their true and lawful agent, attorney-in-fact and representative (such person and his appointed and designated successor or successors being herein referred to as the "Seller Representative"), with full power of substitution to do act for and on behalf of such Seller Guarantor TA and such Seller any the Sellers, and each of them, for all thingspurposes under this Agreement and in connection with the transactions contemplated hereby including, including executing any and all documentswithout limitation, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingfor purposes of: (i) receiving determining the amount of any Damages (as such term is hereinafter defined) suffered or incurred by FreeStar and disbursing payments the number of shares of FreeStar Common Stock to be made hereunder; delivered for cancellation in satisfaction of the Sellers' indemnification obligations, (ii) determining the amount of Seller Damages (as that term is hereinafter defined) suffered or incurred by the Sellers, (iii) receiving notices from FreeStar given under this Agreement, of which the Seller Representative will give a copy to the other Sellers, (iv) approving and communications pursuant agreeing with FreeStar as to additions, deletions, changes, modifications and amendments to this Agreement and the Seller Ancillary Agreements; Annexes hereto, except with respect to any addition, deletion, change, modification or amendment to a material financial term or condition of any of such documents that would materially, financially and adversely affect the Sellers, and (iiiv) administering this Agreement settling finally and the Seller Ancillary Agreements, including the initiation and resolution of completely any disputes or claims; controversies among the parties hereto (ivother than solely among the Sellers) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling interpretation or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments effect of this Agreement, waivers of conditions and obligations or damages or relief under this Agreement and any and all transactions contemplated hereby. The Seller Representative shall be entitled to reimbursement by the Seller Ancillary Agreements; (vii) asserting claims Sellers from the consideration actually payable to the Sellers or otherwise for or defending claims of indemnification under Article 8 all reasonable costs and resolvingexpenses incurred by him in fulfilling his duties hereunder, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement agree among themselves that such costs and expenses shall be borne pro rata among them according to the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by number of shares of TA Common Stock owned immediately prior to the Closing. The Sellers agree that the Seller Representative in connection with this Agreementmay make reasonable requests for advances to cover such costs and expenses, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of make such determinationadvances. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively In no event will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation FreeStar be liable for any costs or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability expenses of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be nature incurred by the Seller Representative in performing such actions.
(d) The its capacity as such. TA AND EACH SELLER, JOINTLY AND SEVERALLY, AGREE THAT THE SELLER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SELLERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION 1.07. FreeStar shall not have any obligation or liability to indemnify or defend the Seller Representative in respect of any claim or liability asserted against the Seller Representative by any Seller or its successors or assigns. All determinations, decisions, actions and the like made by the Seller Representative shall be entitled to: (i) rely final, conclusive and binding upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, all Sellers and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller all persons claiming under or other partythrough them.
Appears in 1 contract
Samples: Stock Purchase Agreement (Freestar Technology Corp)
Seller Representative. (a) Each Seller Guarantor has and each does hereby irrevocably appoint Blake Production Company, Inc. (the “Seller irrevocably appoints Seller Representative to act Representative”) as such Seller Guarantor’s and such Seller’s exclusive the agent and true and lawful attorney-in-fact with full power of substitution to do on behalf each Seller for the purposes of acting in the name and stead of such Seller Guarantor in: (a) giving and such Seller receiving all notices, accepting service of process and making any elections or designations permitted or required by this Agreement (and all things, including executing any and all documents, which may be necessary, convenient notices required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted to be made hereunderby Buyer to Sellers or any Seller hereunder shall be deemed to be duly made by Buyer upon providing such notice to Sellers’ Representative as provided in this Section 17); (iib) acting on each Seller’s behalf under any other covenant, agreement or provision of this Agreement; (c) agreement with Buyer as to any amendments to this Agreement which the Seller Representative may deem necessary or advisable, including but not limited to the extension of time in which to consummate the transactions contemplated by this Agreement, and the waiver of any closing conditions; (d) receiving notices and communications payments under or pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of disbursements thereof to any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all actsSeller, as contemplated by or deemed advisable this Agreement, and setting aside 25 portions of such payments reasonably determined by the Seller Representative to be necessary or appropriate as a reserve to make payments required under this Agreement or to fund out-of-pocket expenses (including the fees and expenses of counsel) incurred in connection with the performance of the Seller Representative’s duties under this Agreement; (e) with respect to any indemnification claims, purchase price adjustment provisions, title and environmental defect processes and all other matters arising under this Agreement, the Escrow (i) disputing or refraining from disputing, on behalf of any Seller relative to any amounts to be received by any Seller under this Agreement or any agreements contemplated hereby, or any claim made by Buyer under this Agreement, (ii) negotiating and compromising, on behalf of each Seller, any dispute, controversy or dispute that may arise under, and exercise or refrain from exercising any rights or remedies available under, this Agreement, and (iii) executing, on behalf of each Seller, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Seller on the one hand and the Seller Representative Engagement Agreement on the other hand; and (f) performing those actions or exercising those powers otherwise specifically provided to the Seller Ancillary Agreements. Notwithstanding Representative pursuant to the foregoingterms of this Agreement; provided, however, that, in each case, the Seller Representative shall have no obligation not take any action adverse to act on behalf of the Sellers, except as expressly provided herein, any Seller unless such action is also taken proportionately with respect to each other Seller. Notices delivered in the Escrow Agreement, in the Seller Ancillary Agreements accordance with Section 17.c. and in communications to or from the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit shall constitute notice to or the Company Disclosure Letterfrom each Seller. A Any decision, act, consent or instruction of the Seller Representative (acting in its capacity as the Seller Representative) shall constitute a decision for all of the each Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingeach Seller, and Acquiror, its Affiliates and Representatives Buyer may rely upon any such decision, act, consent or instruction of instruction. Each Seller hereby agrees that: (i) in all matters in which action by the Seller Representative as being is required or permitted, the decisionSeller Representative is authorized to act on behalf of such Seller, actnotwithstanding any dispute or disagreement among the Sellers, consent and Buyer shall be entitled to rely on any and all action taken by the Seller Representative under this Agreement without any liability to, or instruction obligation to inquire of, any Seller, notwithstanding any knowledge on the part of each Buyer of any such dispute or disagreement; and (ii) the appointment of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are is coupled with an interest and will shall be irrevocable by any Seller Guarantor or any each Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountreason.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chaparral Energy, Inc.)
Seller Representative. (a) Each Seller Guarantor 18.1 Subject to the limitations set forth in Section 18.5, Sellers hereby appoint and each Seller irrevocably appoints comprehensively authorize Seller Representative for each Seller, and Sellers as a group under this Agreement, and in particular (i) to act as such validly receive and accept any declarations, notifications, measures and actions from and made by Purchaser with binding and fulfilling effect towards any Seller Guarantor’s (Empfangsvertreter), and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution (ii) to do make or take, on behalf of each Seller and Sellers as a group, declarations, notifications, measures and actions towards Purchaser, and Seller Representative hereby accepts such appointments and authorizations. For the purpose of the power of attorney granted by such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: under item (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the as far as legally possible, all such Sellers hereby fully release Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated Representative from all restrictions imposed by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the 181 BGB.
18.2 Seller Guarantors and the Representative’s power of representation granted by such Sellers pursuant to Article 12; (vi) agreeing Section 18 shall comprise the power to amendments of this Agreement, waivers of conditions negotiate and obligations settle disputes or indemnification claims under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement.
18.3 For as long as Sellers have not appointed a new Seller Representative and notified Purchaser of such appointment and such Seller Representative adhered to this Agreement by written accession declaration, which adherence is hereby already irrevocably offered by the Escrow Parties to this Agreement, the Seller Representative Engagement Agreement any declarations, notifications, measures and the Seller Ancillary Agreements. Notwithstanding the foregoing, the actions made by Purchaser towards Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the binding effect vis-à-vis such Seller. If Seller Representative Engagement Agreementresigns or ceases to function in such capacity for any reason whatsoever, and for purposes of clarity, there are then Sellers shall within ten Business Days appoint a successor Seller Representative. If within ten Business Days no obligations of the successor Seller Representative in any ancillary agreementis appointed, schedule, exhibit or Purchaser shall have the Company Disclosure Letter. A decision, act, consent or instruction right to ask a court of competent jurisdiction to appoint a successor Seller Representative who shall constitute a decision for all of the Seller Guarantors and the Sellers under adhere to this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby be authorized and thereby, and vested with all powers as per this Section 18.2.
18.4 Sellers shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability entitled to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) exercise rights under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the only through Seller Representative, or any other person jointly appointed in writing by Sellers to act as their agent of which appointment Purchaser shall have been notified in writing in advance. The right of Purchaser to individually notify each Party to this Agreement shall remain unaffected.
18.5 Sellers may revoke the power of attorney granted to Seller Representative, only if Sellers appoint and authorize at the same time a new Seller Representative will require the act of a majority of the Seller Representatives which will pursuant to Sections 18.3 and Section 18.4 who shall adhere to this Agreement and be binding upon the Seller Guarantors, the Sellers authorized and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, vested with all powers as per this Section 18.
18.6 Purchaser shall be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at make any time by written notice delivered to the Seller Guarantorsnotifications, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation declarations or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services communications under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the this Agreement towards Seller Representative’s execution and performance of this Agreement, the Escrow Agreementwhich shall, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsif made, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it deemed to be genuine, made and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other partyhave legal effect towards all Sellers.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Seller Representative may, in its sole discretion, determine to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient desirable or appropriate to facilitate in connection with the consummation of matters set forth in Sections 1.12, 1.13 and 1.14, the Stock PurchaseParticipating Securityholders, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and by the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments adoption of this Agreement, waivers acceptance of conditions and obligations consideration under this Agreement and/or the completion and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions execution of the Seller Guarantor and Participating Securityholders Transmittal Document shall be deemed to have designated Fortis Advisors LLC as the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf representative of the Sellers, except as expressly provided herein, in Participating Securityholders (the Escrow Agreement, in the “Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative”).
(b) If at any time there is more than one Person appointed to serve as In the Seller Representative, any act of event the Seller Representative will require becomes unable to perform its responsibilities hereunder or resigns from such position, the act of Participating Securityholders who hold at least a majority in interest of the Seller Representatives which will Pro Rata Fractions at such time shall be binding upon the Seller Guarantors, the Sellers authorized to and the Seller Representatives, shall select another representative to fill such vacancy and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, substituted representative shall be entitled deemed to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as be the Seller Representative for any reason, the Seller Guarantors all purposes of this Agreement and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Datedocuments delivered pursuant hereto. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement and/or the delivery of a Participating Securityholder Transmittal Document contemplated by Section 1.11, and without any further action of any of the Participating Securityholders or the Company, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Seller Representative shall be appointed and constitute the true and lawful attorney-in-fact and exclusive agent of each Participating Securityholders with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Seller Representative Engagement Agreement;
(ii) the Seller Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Participating Securityholders (in the name of any or all of the Participating Securityholders or otherwise) any and all documents that the Seller Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Seller Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Securityholder individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing;
(iii) notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Participating Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Seller Representative Engagement Agreement;
(iv) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Seller Representative as to any of the matters described in this Section 1.15, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(v) the Seller Representative shall be entitled to: (i) rely upon the Estimated Closing Statement, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Participating Securityholder or other party;
(vi) all actions, decisions and instructions of the Seller Representative shall be conclusive and binding upon each of the Participating Securityholders and the Participating Securityholders successors as if expressly confirmed and ratified in writing by Participating Securityholders, all defenses which may be available to any Participating Securityholder to contest, negate or disaffirm the action of the Seller Representative taken in good faith under this Agreement, the Escrow Agreement or the Seller Representative Engagement Agreement are waived, and no Participating Securityholder shall have any cause of action against the Seller Representative Group for any action taken, decision made or instruction given by the Seller Representative under this Agreement, the Escrow Agreement or the Seller Representative Engagement Agreement, except for fraud or willful breach of this Agreement on the part of the Seller Representative;
(vii) the provisions of this Section 1.15, and the powers, immunities and rights to indemnification granted to the Seller Representative Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Securityholder may have in connection with the transactions contemplated by this Agreement, (ii) shall survive the death, incompetence, bankruptcy or liquidation of any Participating Securityholder and shall be binding on any successor thereto, and (iii) shall survive the delivery of an assignment by any Participating Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount and Contingent Consideration; and
(viii) the provisions of this Section 1.15 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Securityholder, and any references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the successors to the Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) At the Closing, Parent shall cause to be deposited, in an account designated by the Seller Representative, $500,000 (the “Seller Representative Reserve”). Each Participating Securityholders’ Pro Rata Fraction of the Seller Representative Reserve shall be withheld from the Merger Consideration otherwise payable to such Participating Securityholder on the Closing Date. The Seller Representative acknowledges Reserve may be applied as the Seller Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities, losses, claims, damages, judgments, fines, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) that it the Seller Representative incurred in connection with the transactions contemplated by this Agreement, the Escrow Agreement or the Seller Representative Engagement Agreement, including in connection with the matters contemplated by Section 1.12 and the evaluation or defense of any claim for indemnification under this Agreement (the “Seller Representative Expenses”), or as otherwise determined by the Advisory Group. The Seller Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Seller Representative Reserve other than as a result of its gross negligence or willful misconduct. The Seller Representative is not acting as a withholding agent or in any similar capacity in connection with the Seller Representative Reserve and has read no tax reporting or income distribution obligations. The Participating Securityholders will not receive any interest on the Seller Representative Reserve and understands assign to the Seller Representative any such interest. Subject to Advisory Group approval, the Seller Representative may contribute funds to the Seller Representative Reserve from any consideration otherwise distributable to the Participating Securityholders. The balance of the Seller Representative Reserve held pursuant to this Section 13.181.15(d), if any, shall, at the sole discretion of the Seller Representative and xxxxxx accepts at such appointmenttime to be determined in the sole discretion of the Seller Representative, be deposited with the Payment Agent and distributed to the Participating Securityholders according to each such Participating Securityholder’s Pro Rata Fraction. Prior to any such distribution of the Seller Representative Reserve, the Seller Representative shall deliver to Parent and the Payment Agent an updated Estimated Closing Statement (which need not be certified by an officer of the Company) setting forth the portion of the Seller Representative Reserve payable to each Participating Securityholder.
(e) Certain Sellers Participating Securityholders have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements Agreement and the Seller Representative Engagement Agreement (such SellersParticipating Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The As between the Participating Securityholders and the Seller Representative, neither the Seller Representative and nor its members, managers, directors, officers, contractors, agents and employees and nor any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of ), shall be liable for any kind with respect to any action act done or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreementomitted hereunder, under the Escrow Agreement, Agreement or under the Seller Representative Engagement Agreement as Seller Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Ancillary AgreementsRepresentative Group shall be indemnified, except in defended and held harmless and reimbursed by the event of liability directly resulting from the Participating Securityholders against any Seller Representative’s FraudRepresentative Expenses incurred without bad faith, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless misconduct on the part of the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance acceptance or administration of this Agreementits duties hereunder, under the Escrow Agreement, Agreement or under the Seller Representative Engagement Agreement and in connection with any Seller Representative Expenses, at the election of the Seller Ancillary AgreementsRepresentative, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from at any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.from
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor of the Sellers hereby irrevocably constitutes and each Seller irrevocably appoints Seller Representative to act Hxxx Xxxxxxx, with full power of substitution and re-substitution, as such Seller Guarantor’s its and such Seller’s exclusive agent and their true and lawful agent, attorney-in-fact and representative (such person and his appointed and designated successor or successors being herein referred to as the “Seller Representative”), with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act for and on behalf of the Sellers, except as expressly provided hereinand each of them, in the Escrow Agreement, in the Seller Ancillary Agreements for all purposes under this Agreement and in connection with the Seller Representative Engagement Agreementtransactions contemplated hereby including, and without limitation, for purposes of: (i) determining the amount of clarityany damages suffered or incurred by Fonix, there are no obligations Buyer or the Funds and the payment or satisfaction of such amounts in satisfaction of the Sellers’ indemnification obligations, (ii) determining the amount of any Seller Representative in any ancillary agreementdamages suffered or incurred by the Sellers, schedule(iii) receiving notices from Fonix, exhibit Buyer or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers Funds given under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of which the Seller Representative will require give a copy to the act of a majority of other Sellers, (iv) approving and agreeing with Buyer, Fonix or the Seller Representatives which will be binding upon the Seller GuarantorsFunds as to additions, the Sellers deletions, changes, modifications and amendments to this Agreement and the Seller Representativesexhibits hereto, except with respect to any addition, deletion, change, modification or amendment to a material financial term or condition of any of such documents that would materially, financially and adversely affect the Sellers, and upon such act by a majority (v) settling finally and completely any disputes or controversies among the parties hereto (other than solely among the Sellers) with respect to the interpretation or effect of the or damages or relief under this Agreement and any and all transactions contemplated hereby. The Seller Representatives, Acquiror will, in reliance thereon, Representative shall be entitled to reimbursement by the Sellers from the consideration actually payable to the Sellers or otherwise for all benefits reasonable costs and protections expenses incurred by him in fulfilling his duties hereunder, and the Sellers agree among themselves that such costs and expenses shall be borne pro rata among them according to the number of this Section 13.18(bG-Soft Shares (on an as-converted basis) as though such act were owned immediately prior to the unanimous act of all Seller RepresentativesClosing. Any The Sellers agree that the Seller Representative may resign as a Seller Representative at any time by written notice delivered make reasonable requests for advances to the Seller Guarantorscover such costs and expenses, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by make such advances. In no event will Buyer, Fonix or the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation Funds be liable for any costs or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability expenses of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be nature incurred by the Seller Representative in performing such actions.
(d) The its capacity as such. EACH SELLER, JOINTLY AND SEVERALLY, AGREES THAT THE SELLER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SELLERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION 2.5. None of Buyer, Fonix or the Funds shall have any obligation or liability to indemnify or defend the Seller Representative in respect of any claim or liability asserted against the Seller Representative by any Seller or its successors or assigns. All determinations, decisions, actions and the like made by the Seller Representative shall be entitled to: (i) rely final, conclusive and binding upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, all Sellers and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller all persons claiming under or other partythrough them.
Appears in 1 contract
Samples: Exchange Agreement (Fonix Corp)
Seller Representative. (a) Each Seller Guarantor and Effective as of the Closing Date, each Seller Party, for itself, himself or herself and for its, his or her successors and assigns, hereby irrevocably makes, constitutes and appoints Xxxxx X. Xxxxx as the Seller Representative to act hereunder, as such Seller Guarantor’s and such Seller’s exclusive agent and its, his or her true and lawful representative and attorney-in-fact fact, with full power of substitution or re-substitution, to do act solely and exclusively for and on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Party with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingany claim, settling matter, position or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations dispute arising under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement Transaction Documents and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are hereby accepts such appointment. Each Seller Party acknowledges that the appointment of Xxxxx X. Xxxxx as Seller Representative is coupled with an interest and will may not be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and revoked. Purchaser shall be binding entitled to rely on any successor thereto, and shall survive the delivery of an assignment by any Seller all actions of the whole or any fraction Seller Representative as authorized by all of his, her or its interest in the Adjustment Escrow AmountSeller Parties.
(b) In furtherance of the appointment of the Seller Representative, each Seller Party, fully and without restriction, irrevocably: (i) agrees to be bound by all notices received and agreements and determinations made by and documents executed and delivered by the Seller Representative under this Agreement and the Transaction Documents; and (ii) authorizes the Seller Representative to (A) execute on its, his or her behalf and deliver to the Purchaser or other Persons all certificates and documents to be delivered to the Purchaser or other Persons by the Seller Parties pursuant to this Agreement and the Transaction Documents; (B) dispute or refrain from disputing any claim made by the Purchaser or any Purchaser Indemnified Party under this Agreement or the Transaction Documents; (C) assert, defend, negotiate, compromise, waive and settle any claim or dispute which may arise under this Agreement or the Transaction Documents; (D) pay any amounts due to the Purchaser or any other Purchaser Indemnified Parties from any Seller Party under this Agreement or the Transaction Documents, provided that this provision shall not expand the Seller Representative’s indemnification obligations under this Agreement (in the Seller Representative’s capacity as an Equityholder); (E) exercise or refrain from exercising any remedies available to the Seller Parties under this Agreement or the Transaction Documents; (F) sign on behalf of each Seller Party any releases or other documents with respect to any such dispute or remedy; (G) waive any condition contained in this Agreement or the Transaction Documents; (H) give such instructions and do or refrain from doing such other things as the Seller Representative, in his reasonable discretion, deems necessary or appropriate to carry out the provisions of this Agreement and the Transaction Documents; (I) amend this Agreement or the Transaction Documents in a manner not adverse to the Seller Parties; and (J) retain such counsel, accountants and other professional advisors as the Seller Representative reasonably deems necessary to assist him in the performance of the Seller Representative’s rights and duties hereunder (in which case Seller shall pay the fees and expenses thereof). Payments made by the Seller Representative under this Section 2.04(b) will be considered to be paid by all of the Seller Parties.
(c) If at any time there the Seller Representative resigns or is more than one otherwise unable or unwilling to serve in such capacity, then the Seller Parties will appoint a new Person appointed to serve as the Seller Representative and will provide prompt written notice thereof to the Purchaser. The then serving Seller Representative shall in such circumstance continue to serve as the Seller Representative until such new Person is duly appointed as the Seller Representative.
(d) The Seller and Equityholders shall jointly and severally indemnify the Seller Representative and hold the Seller Representative harmless against any and all Loss, any act Liability, obligation, damages, judgment, suit or expense incurred on the part of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with his duties and rights as the Seller Representative; provided, however, that the indemnification obligations set forth in this Section 2.04(d) shall not apply to the extent such Loss, Liability or expense is incurred as a result of the Seller Representative’s execution and performance Fraud. The indemnification provisions set forth in this Section 2.04(d) shall survive the termination of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurredTransaction Documents. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.29
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each of the Parent Sub and the Consenting Parent Equity Holders (the “Seller Represented Parties”), irrevocably appoints constitutes and appoints, upon the date of this Agreement, Parent (and by execution of this Agreement as Seller Representative to act Representative, Parent hereby accepts such appointment) as such Seller Guarantor’s the true, exclusive and such Seller’s exclusive lawful agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock PurchaseSeller Represented Parties to act in the name, including: (i) receiving place and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to stead of the Seller Represented Parties in connection with the transactions contemplated by this Agreement and the Seller Ancillary Agreements; (iii) administering , in accordance with the terms and provisions of this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the SellersSeller Represented Parties in any Proceeding affecting any Seller Represented Parties, except to do or refrain from doing all such further acts and things, and to execute all such documents as expressly provided hereinthe Seller Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, including the power:
(i) to act for the Seller Represented Parties with regard to matters pertaining to Article II, Article VIII and Article IX (as well as this Section 6.2);
(ii) to act for the Seller Represented Parties with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, in including the Seller Ancillary Agreements power to compromise any indemnity claim on behalf of such Persons and in to transact matters of litigation or other Proceedings;
(iii) to execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Seller Representative Engagement deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements;
(iv) to execute and deliver all amendments and waivers to this Agreement and the Ancillary Agreements that the Seller Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(v) to receive funds for the payment of expenses of the Seller Represented Parties and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Seller Represented Parties that the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Ancillary Agreements as fully and completely as such Persons could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement. The power of attorney granted in this Section 6.2(a) is coupled with an interest and is irrevocable, may be delegated by the Seller Representative and shall survive the dissolution, liquidation, death or incapacity of each Seller Represented Party. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Seller Representative who is an individual), and any such successor shall succeed the Seller Representative as Seller Representative hereunder. No bond shall be required of the Seller Representative, and the Seller Representative shall receive no compensation for purposes of clarity, there are no obligations his or its services.
(b) The Seller Representative shall not be liable to any Person for any act of the Seller Representative taken in good faith and in the exercise of its reasonable judgment and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any ancillary agreementact done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), scheduleexcept to the extent any liability, exhibit loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the gross negligence or bad faith of the Seller Representative. The Seller Representative shall not be liable for, and may seek indemnification from the Seller Represented Parties for, any liability, loss, damage, penalty, fine, cost or expense incurred by the Seller Representative while acting in good faith and in the exercise of its reasonable judgment and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the gross negligence or bad faith of the Seller Representative; provided that the Seller Representative first shall seek recovery of any such liability, loss, damage, penalty, fine, cost or expense from the Seller Representative Escrow Fund.
(c) From and after the Closing, Purchaser shall (and shall cause the Acquired Companies to) provide the Seller Representative with reasonable access to information about the Acquired Companies and the Acquired Business and the reasonable assistance of the officers and employees of Purchaser and the Acquired Companies for purposes of performing its duties and exercising its rights and the rights of the Seller Represented Parties under this Agreement, provided, that the Seller Representative shall treat confidentially any nonpublic information about the Purchaser, the Acquired Companies or the Company Disclosure Letter. A Acquired Business (except to the extent reasonably necessary for the Seller Representative to perform its duties or exercise its rights or the rights of the Seller Represented Parties under this Agreement).
(d) From and after the Closing, a decision, act, consent or instruction of the Seller Representative shall constitute a decision for of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Represented Parties and shall be final, binding and conclusive upon the each Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingRepresented Party, and Acquiror, its Affiliates the Escrow Agent and Representatives Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Represented Party. Purchaser is hereby relieved from any liability to any Person for any acts done by Purchaser in accordance with any such decision, act, consent or instruction of the Seller Guarantor Representative.
(e) Notwithstanding anything to the contrary in this Agreement, at the time of any distribution to any Seller Represented Party or any Seller as a result of such reliance. Any payment by Acquiror Remaining Member from the Escrow Fund or the Escrow Agreement to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a Represented Party or the payment by Acquiror of any Earnout Amount to the any Seller Guarantors and the Sellers. The powersRepresented Party, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor shall have the right to cause a portion of such distribution or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as payment deposited into the Seller RepresentativeRepresentative Escrow Fund, any act provided that the balance of the Seller Representative will require the act Escrow Fund shall at no time exceed USD $300,000.
(f) Without limitation of a majority any other provision of this Section 6.2, the Seller Representatives which will be binding upon the Seller Guarantors, Representative shall have full power and authority to act for the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered Remaining Members pursuant to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Escrow Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such SellersEscrow Agreement, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative without limitation in connection with the Seller Representative’s services pursuant delivery of instructions to this Agreementthe Escrow Agent as to the disbursement of all or any portion of the Working Capital Escrow Fund, the Escrow Agreement, Fund and the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconductEscrow Fund. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required liable to expend or risk its own funds or otherwise incur any financial liability other Person in connection with the exercise or performance delivery of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, such instructions in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsgood faith.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Merger Agreement (Thoratec Corp)
Seller Representative. (a) Each Seller Guarantor and each Seller The Sellers irrevocably appoints Seller Representative appoint Xxxxx Xxxxx to act as such Seller Guarantor’s and such Seller’s exclusive the designated representative, agent and true and lawful attorney-in-fact of such Sellers with full power of substitution authority to do make all decisions and determinations and to take all actions required or permitted under this Agreement on behalf of such Sellers (in such capacity, the “Seller Guarantor and such Seller any and all thingsRepresentative”), including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving approving and disbursing payments executing any of the documents required under this Agreement to be made hereunder; delivered by such Sellers (other than AIG) on or after the Closing Date, (ii) receiving notices and communications pursuant to approving or contesting any matter provided for in Article 2 of this Agreement and the Seller Ancillary Agreements; Agreement, (iii) administering this Agreement and any indemnification matter on behalf of the Seller Ancillary AgreementsSellers, including agreeing to the initiation and resolution settlement of any disputes or claims; indemnification matter and otherwise handling and negotiating indemnification matters, (iv) making determinations agreeing to settle any dispute with respect waiver, consent or amendment under or to the purchase price adjustments contemplated by Section 2.3(b); this Agreement, (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and distributing to the Sellers pursuant any portion of any consideration hereunder payable to Article 12; the Sellers after the Closing Date, (vi) agreeing to amendments of this Agreementsending, waivers of conditions receiving and obligations reviewing notices under this Agreement on behalf of the Sellers; provided that Seller Representative shall provide AIG with a copy of any notice received from Buyer following the Closing Date as promptly as reasonable practicable following receipt of such notice, and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims designating a successor Seller Representative (with the approval of indemnification under Article 8 and resolving, settling or compromising any such claim; (viiiAIG) taking any other actions in the event of the resignation or death of the then current Seller Guarantor Representative. Each Seller acknowledges that this Section 11.9 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and the Sellers handling of all matters which arise under or in connection with this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable Agreement. All actions taken by the Seller Representative in connection with this Agreementwith, or relating to, the Escrow Agreement, subject matter of this Agreement that are within the authority conferred upon the Seller Representative Engagement Agreement pursuant to this Section 11.9 shall be deemed authorized, approved, ratified and confirmed by the Seller Ancillary AgreementsSellers, having the same force and effect as if performed pursuant to the direct authorization of such the Sellers. Notwithstanding the foregoingBuyer shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, Sellers and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the Escrow Agreement, in actions taken or not taken or communications or writings given or executed by the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure LetterRepresentative. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and Buyer shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon entitled to disregard any such decision, act, consent notices or instruction of Seller Representative as being the decision, act, consent communications given or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable made by any Seller Guarantor unless given or any made through the Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative.
(b) If By Seller Representative’s execution hereof, the Seller Representative hereby accepts the appointment as such. The Seller Representative may resign at any time there in a writing delivered to the Sellers. The Sellers may, at any time, remove the Seller Representative and appoint a substitute representative by written consent signed by the Sellers (or, if applicable, their respective heirs, legal representatives, successors and assigns) representing a majority of the aggregate Pro Rata Percentage; provided¸ that such appointment shall also require the consent of AIG. If the Seller Representative is more than one Person appointed to serve as an individual and dies or becomes disabled or incapacitated, or if the Seller Representative is an entity and files for bankruptcy, becomes insolvent or dissolves, or if the Seller Representative, any act of in either case, otherwise becomes unable to perform the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller GuarantorsRepresentative’s responsibilities hereunder or resigns from such position, the Sellers and the Seller Representativesshall, and upon by such act by written consent (including of AIG), appoint a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled substitute representative to all benefits and protections of this Section 13.18(b) as though fill such act were the unanimous act of all Seller Representativesvacancy. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered such substitute representative shall be deemed to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as be the Seller Representative for any reasonall purposes of this Agreement. Upon the selection of such substitute Seller Representative, the Seller Guarantors and the Sellers will such substitute shall promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror Buyer in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as appointment, which written notice shall be accompanied by a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority copy of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementwritten consent effecting such appointment.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts shall act in such appointment. Certain Sellers have entered into an engagement agreement (capacity in the “Seller Representative Engagement Agreement”) with manner the Seller Representative believes to provide direction be in the best interest of the Sellers. The Seller Representative is authorized to act on behalf of the Sellers notwithstanding any dispute or disagreement among the Sellers. In taking any action as the Seller Representative, the Seller Representative in connection with its services under this Agreementmay rely conclusively, the Escrow Agreementwithout any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Seller Ancillary Agreements Representative reasonably believes to be authorized thereunto. The Seller Representative may, in all questions arising hereunder, rely on the advice of counsel of its choosing, and the Seller Representative Engagement Agreement (shall not be liable to any Seller for anything done, omitted or suffered in good faith by the Seller Representative based on such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)advice. The Seller Representative undertakes to perform such duties and its members, managers, directors, officers, contractors, agents only such duties as are specifically set forth in this Agreement and employees and any member of no implied covenants or obligations shall be read into this Agreement against the Advisory Group (collectively, the “Seller Representative. The Seller Representative Group”) will incur no shall not have any liability of any kind with respect to any action Seller for any act done or omission by omitted hereunder as the Seller Representative while acting in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconductgood faith. The Seller Guarantor and Representative shall be indemnified by the Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damagesloss, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs liability or expense incurred in good faith on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) and arising out of or in connection with the acceptance or administration of the Seller Representative’s execution and performance of duties hereunder.
(d) Notwithstanding anything to the contrary in this Agreement, the Escrow Agreement or any document related to this Agreement, the Seller Representative Engagement will only have the power or authority to act regarding matters pertaining to the Sellers as a group and not regarding matters pertaining to or affecting an individual Seller in a manner different from other Sellers generally (such individual Seller matters would include, for example, but not by way of limitation, an action against an individual Seller for his, her or its breach of any representation or warranty set forth in Article 4 or breach or nonfulfillment of any covenant or agreement under this Agreement), and the powers conferred on the Seller Representative herein and in such other related document shall not authorize or empower the Seller Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or such other document or otherwise) that (i) results in the amounts payable hereunder or thereunder to any Seller being distributed in any manner other than as permitted pursuant to this Agreement or such related document, (ii) alters the consideration payable to any Seller pursuant to this Agreement or such related document, or (iii) adds to or results in an increase of any Seller’s indemnity or other obligations or Liabilities under this Agreement or such related document (including, for the avoidance of doubt, any change to the nature of the indemnity obligations); provided that settlement of an indemnification matter or the post-closing adjustment in Section 2.4(d), in each case otherwise in accordance with this Agreement, shall not constitute a breach of the limitations set forth in clauses (i) through (iii).
(e) The Company and the Seller Ancillary AgreementsRepresentative will, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable at least three (3) Business Days prior to the Sellers at Closing Date, direct, by joint written notice to Buyer, that on the time of distribution, and second, Closing Date an amount equal to $2,000,000 (the “Holdback Amount”) shall be paid directly from the Sellers. The Sellers acknowledge that by Buyer to the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability as designated in such notice, as a fund for the exercise or performance fees and expenses of any of its powers, rights, duties or privileges or pursuant to the Seller Representative incurred in connection with this Agreement, with any balance of the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall Holdback Amount not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred used for such purposes (as determined by the Seller Representative in performing such actions.
(dgood faith) The to be paid by the Seller Representative shall be entitled to: (i) rely to the Sellers in accordance with their respective Holdback Allocations upon its good faith determination that the Payment Schedule, (ii) rely upon any signature believed by it remaining Holdback Amount is no longer necessary for the Seller Representative’s performance of its duties pursuant to be genuinethe Transaction Documents, and which release shall occur no later than four (iii4) reasonably assume that a signatory has proper authorization to sign on behalf years from the date of the applicable Seller or other partythis Agreement.
Appears in 1 contract
Samples: Unit Purchase Agreement (White Mountains Insurance Group LTD)
Seller Representative. (a) Each Sellers irrevocably make, constitute and initially appoint Xxxxxx X. Xxxxxxxxx (the “Seller Guarantor and each Seller irrevocably appoints Seller Representative to act Representative”) as such Seller Guarantor’s and such Seller’s exclusive agent and their true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller Sellers any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasetransactions contemplated by this Agreement and the other Transaction Documents, including: (i) receiving and disbursing payments to be made hereunderunder this Agreement or the Transaction Documents; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreementsother Transaction Documents; (iii) administering this Agreement and the Seller Ancillary Agreementsother Transaction Documents, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect as to the purchase price adjustments contemplated by Section 2.3(b)calculation of the Purchase Price; (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 128; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreementsother Transaction Documents; and (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; .
(viiib) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by If the Seller Representative in connection with is of the opinion that Seller Representative requires further authorization or advice from Sellers on any matters concerning this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement is entitled to seek such further authorization from Sellers prior to acting on their behalf. In such event and on any other matter requiring or permitting Sellers to vote in this Section 5.9, each Seller will have a number of votes equal to the Shares owned by that Seller immediately prior to Closing and the Seller Ancillary Agreements. Notwithstanding the foregoing, authorization of a majority of such Shares will be binding on all Sellers and will constitute authorization by all Sellers.
(c) Buyer will be fully protected in dealing with the Seller Representative shall have no obligation with respect to act on behalf of the Sellers, except as expressly provided herein, in the Escrow this Agreement, in the Seller Ancillary Agreements other Transaction Documents and in the Seller Representative Engagement Agreement, transactions contemplated by it and for purposes of clarity, there are no obligations them and may rely upon the authority of the Seller Representative in any ancillary agreement, schedule, exhibit or to act as the Company Disclosure Letter. A decision, act, consent or instruction agent of Seller Representative shall constitute a decision Sellers for all of the Seller Guarantors and the Sellers purposes under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement other Transaction Documents and the transactions contemplated hereby by it and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliancethem. Any payment by Acquiror Buyer to the Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement other Transaction Document will be considered a payment by Acquiror Buyer to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to appointment of the Seller Representative Group are is coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive reason. This power of attorney will not be affected by the death, incompetence, bankruptcy disability or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller incapacity of the whole or principal pursuant to any fraction of applicable Legal Requirement. The Seller Representative will have no individual liability to Buyer under this Agreement arising from his, her or its interest in actions as the Adjustment Escrow AmountSeller Representative.
(bd) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, all the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror Buyer will, in reliance thereonon such act, be entitled to all benefits and protections of this Section 13.18(b5.9(c) as though such act were the unanimous act of all the Seller Representatives. Any Seller Representative may resign as a the Seller Representative at any time by written notice delivered to the Seller Guarantors, the other Sellers and to AcquirorBuyer. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror Buyer in writing of such determination. Following the time that Acquiror Buyer is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein in this Agreement and Xxxxxxxx Buyer is so notified in writing, the Sellers will collectively will act as the Seller Representative, with decisions made by in the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementmanner specified in Section 5.9(b).
(ce) The Seller Representative acknowledges that it has having carefully read and understands this Section 13.185.9, accepts such appointment and designation, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (promises to act in the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to capacity as the Seller Representative in compliance with and conformance to the provisions of this Section 5.9.
(f) The Seller Representative will not be liable to any Party for any error of judgment or any act done or action taken or omitted by Seller Representative in good faith or for any mistake in fact or Law, or for anything that Seller Representative may do or refrain from doing in connection with its services under this AgreementAgreement or the other Transaction Documents, the Escrow Agreement, the except for Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)Representative’s own willful misconduct. The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and may seek the advice of legal counsel in the event of any member dispute or question as to the construction of any of the Advisory Group (collectivelyprovisions of this Agreement or the other Transaction Documents or Seller Representative’s duties under this Agreement or the Transaction Documents, the “and Seller Representative Group”) will incur no liability of any kind to Sellers and will be fully protected with respect to any action taken, omitted or omission suffered by Seller Representative in good faith in accordance with the opinion of such counsel.
(g) Any expenses incurred by the Seller Representative in connection with the performance of Seller Representative’s services pursuant to duties under this Agreement, Agreement (including any fees and expenses of legal counsel retained by the Escrow Agreement, Seller Representative) will not be the personal obligations of the Seller Representative Engagement Agreement but will be payable and the Seller Ancillary Agreements, except in the event of liability directly resulting will be promptly paid or reimbursed first from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor Representative Holdback Funds and thereafter by Sellers will indemnify, defend on a joint and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsseveral basis.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor designates Xxxxxx X. Xxxx (the “Seller Representative”) as his or her representative for purposes of this Agreement. The Sellers and their respective successors shall be bound by any and all actions taken by the Seller Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Seller Representative is unable or unwilling to serve or shall resign, a successor Seller Representative shall be selected by the Sellers holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing. A Seller Representative may not resign, except upon 30 days prior written notice to Buyer. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Seller Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Seller Representative, the successor shall be deemed to be the executor or other representative of such Seller Representative’s estate) and Buyer shall be notified promptly of such appointment by the successor Seller Representative. No resignation, nor any other replacement, of any Seller Representative is effective against the Buyer until selection of a successor and prior written notice to the Buyer of such selection (such consent not to be unreasonably withheld). Each successor Seller Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Seller Representative.
(b) The Buyer shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Seller Representative on behalf of the Sellers. All communications or writings to be sent to the Sellers pursuant to this Agreement may be addressed to the Seller Representative and any communication or writing so sent shall be deemed notice to all of the Sellers hereunder. The Sellers consent and agree that the Seller Representative is authorized to accept deliveries, including any notice, on behalf of each Seller irrevocably appoints pursuant hereto.
(c) The Seller Representative to act as such Seller Guarantor’s is hereby appointed and such Seller’s exclusive agent and constituted the true and lawful attorney-in-fact of each Seller, with full power of substitution in such Seller’s name and on such Seller’s behalf to do on behalf act according to the terms of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and other documents contemplated hereby in the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions absolute discretion of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary AgreementsRepresentative; and (ix) performing in general to do all actsthings and to perform all acts including, as without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsother documents contemplated hereby, including without limitation Article IX hereof. Notwithstanding This power of attorney and all authority hereby conferred is granted subject to the foregoing, the Seller Representative shall have no obligation to act on behalf interest of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements other Sellers hereunder and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations consideration of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors mutual covenants and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyagreements made herein, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall not be binding on any successor thereto, and shall survive the delivery of an assignment terminated by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act any Seller, by operation of a majority of the Seller Representatives which will be binding upon the Seller Guarantorslaw, the Sellers and the Seller Representatives, and upon whether by such act Seller’s death or disability or by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsevent.
(d) The Seller Representative shall be entitled to: (i) rely upon hereby acknowledges and agrees to serve as the Payment Schedule, (ii) rely upon any signature believed by it Seller Representative in accordance with the applicable terms hereof and to be genuinebound by such terms. At Buyer’s request, the Seller Representative shall enter into an agreement in form and (iii) substance reasonably assume that a signatory has proper authorization satisfactory to sign on behalf of Buyer and the applicable Seller or other party.Representative in which the Seller
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Sellers for all purposes under this Agreement, in including the sole, exclusive and full power and authority to act on such Seller’s behalf: (i) to consummate the transactions contemplated by this Agreement; (ii) to negotiate disputes arising under, or relating to, this Agreement; (iii) to receive and disburse to such Seller Ancillary Agreements any funds or the Parent Stock received on behalf of the Sellers contemplated by this Agreement; (iv) to withhold any amounts received on behalf of the Sellers pursuant to this Agreement or otherwise to satisfy any and in all obligations or liabilities incurred by the Sellers or the Seller Representative Engagement Agreementin the performance of its duties hereunder and thereunder; (v) to execute and deliver any amendment or waiver to this Agreement (without the prior approval of the Sellers); and (vi) to take all other actions to be taken by or on behalf of the Sellers in connection with this Agreement and the Transaction Documents; provided that (ii), (iv) and for purposes of clarity(v) may only be taken after consultation with the Sellers. Each Seller further agrees that such agency and proxy are coupled with an interest, there are no obligations therefore irrevocable without the consent of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetenceincapacity, bankruptcy bankruptcy, dissolution or liquidation of any Seller. Except in the event of fraud, all decisions and actions by the Seller and Representative shall be binding on any successor theretoupon all of the Sellers, and no Seller shall survive have the delivery right to object, dissent, protest or otherwise contest the same. The Seller Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountthis Agreement.
(b) If at Each Seller severally, for itself only and not jointly, in accordance with such Seller’s Pro Rata Percentage, agrees to indemnify and hold harmless the Seller Representative and its Representatives against any time there is more than one Person appointed to serve and all actions, liabilities, losses, damages, fines, penalties, fees, costs, expenses or amounts paid in settlement (in each case, including reasonable attorneys’ fees and expenses), whether or not involving a third party, arising as a result of its serving as the Seller Representative, any act of including those incurred by the Seller Representative will require or the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal Affiliates of the Seller Representative or any member employees, principals, fiduciaries, agents or representatives of the Advisory Group and Seller Representative or such affiliates in connection with the Closing and/or protection, defense, enforcement of any termination rights, or fulfilment of any obligations under this Agreement or any expenses in connection therewith. Any and the Escrow Agreementall payments made by or on behalf of any Seller under this Section 8.16(b) will be made free and clear of any present or future taxes, deductions, charges or withholdings and all liabilities with respect thereto.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Neither the Seller Representative nor any of its Representatives shall incur any liability to provide direction any Seller by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the Seller Representative in connection with its services under this Agreementperformance of their duties hereunder, the Escrow Agreement, the Seller Ancillary Agreements except for actions or omissions constituting intentional and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)knowing fraud. The Seller Representative and its membersRepresentatives shall have no liability in respect of any Proceeding brought against such Persons by any Seller, managers, directors, officers, contractors, agents and employees and any member regardless of the Advisory Group (collectivelylegal theory under which such liability or obligation may be sought to be imposed, the “Seller Representative Group”) will incur no liability of any kind with respect to whether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsgood faith.
(d) The In the event that the Seller Representative becomes unable or unwilling to continue in its capacity as Seller Representative, or if the Seller Representative resigns as the Seller Representative, a majority-in-number of shares of the Company (prior to the Closing) may, by written consent, appoint a new representative as the Seller Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-number of the Sellers must be delivered to the Buyer and each Seller.
(e) The Buyer shall be entitled to: (i) rely upon the Payment Schedule, (ii) to rely upon any signature believed by it to be genuineaction or decision of, and (iii) reasonably assume that a signatory has proper authorization to sign or instruction by, or any document or other paper delivered by, the Seller Representative on behalf of the applicable Sellers (without any obligation to inquire into the authority of the Seller Representative or the genuineness or correctness of such document or other partypaper or any signature of the Seller Representative), and the Buyer shall not be liable to any Seller for any action taken or omitted to be taken by the Buyer in such reliance or with respect to actions, decisions and determinations of the Seller Representative.
Appears in 1 contract
Seller Representative. (a) Each The Sellers, on behalf of themselves and their successors and assigns (collectively, the "Seller Guarantor Represented Persons"), by execution and each delivery of this Agreement, hereby irrevocably appoint Yellow River (Cayman) Limited, in the capacity as the seller representative (the "Seller irrevocably appoints Seller Representative to act Representative"), as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful their agent, attorney-in-fact and representative, with full power of substitution to do act in the name, place and stead of the Seller Represented Persons, to act on behalf of such each the Seller Guarantor Represented Persons from and such Seller any and after the date of this Agreement for all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasepurposes in connection with this Agreement, including: (i) receiving making on behalf of the Seller Represented Persons any determinations and disbursing payments taking all actions on their behalf relating to be made hereunder; the determination of the Finally Determined Shares, the adjustment to the Exchange Consideration under Section 2.5 and any disputes with respect thereto, (ii) receiving notices making on behalf of such Persons any determinations and communications pursuant taking all actions on their behalf relating to this Agreement the determination of the Revenue and whether the Seller Ancillary Agreementsconditions for the delivery of the Earnout Shares have been satisfied under Section 2.6, and any disputes with respect thereto; (iii) administering this Agreement and the Seller Ancillary Agreementsterminating, including the initiation and resolution of any disputes amending or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions waiving on behalf of the Seller Guarantor and the Sellers under Represented Persons any provision of this Agreement and the Seller or any Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by Document which expressly contemplates that the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to will act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations ; (iv) signing on behalf of the Seller Representative in Represented Persons any ancillary agreement, schedule, exhibit releases or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability other documents with respect to any Seller Guarantor dispute or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) remedy arising under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to Document which expressly contemplates that the Seller Representative Group will act on behalf of any Seller Represented Persons; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as the Seller Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable out-of-pocket fees and expenses allocable or in any way relating to such transaction or any post-Closing consideration adjustment; and (vii) otherwise enforcing the rights and obligations of any Seller Represented Person under this Agreement or any Ancillary Document which expressly contemplates that the Seller Representative will act on behalf of such Seller Represented Person, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Seller Represented Person. All decisions and actions by the Seller Representative shall be binding upon the Seller Represented Persons, and no Seller Represented Person nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The Sellers, on behalf of themselves and the other Seller Represented Persons, acknowledges and agrees that it and they shall not: (x) prohibit the Purchaser or the Purchaser Representative from seeking proper discovery of documents and other information; or (y) permit the Seller Representative or the Seller Represented Persons from asserting that such documents are not discoverable. The provisions of this Section 12.15 are irrevocable and coupled with an interest interest. The Seller Representative hereby accepts its appointment and will be irrevocable by any authorization as the Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative under this Agreement.
(b) If at any time there is more than one Person appointed to serve as the The Seller Representative, Representative shall not be liable for any act of done or omitted under this Agreement or any Ancillary Document which expressly contemplates that the Seller Representative will require the act on behalf of a majority of the any Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Represented Person acting as the Seller Representative for while acting in good faith and without willful misconduct or gross negligence, and any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior act done or omitted pursuant to the Agreement Date to act as the Seller Representative and notify Acquiror in writing advice of counsel shall be conclusive evidence of such determinationgood faith. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification Pubco shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all DamagesLosses incurred without gross negligence, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs bad faith or willful misconduct on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”(in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s execution and performance of duties under this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller or any Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge Document which expressly contemplates that the Seller Representative will act on behalf of the Seller Represented Persons, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall not the Seller Representative in such capacity be required liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to expend be genuine, including facsimiles or risk its own funds or otherwise incur copies thereof, and no Person shall have any financial liability Liability for relying on the Seller Representative in the exercise or foregoing manner. In connection with the performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermorerights and obligations hereunder, the Seller Representative shall not be required have the right at any time and from time to take any action unless time to select and engage, at the cost and expense of the Company, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Seller Representative has been provided with fundsmay deem reasonably necessary or appropriate from time to time. All of the indemnities, security or indemnities whichimmunities, in its determination, are sufficient releases and powers granted to protect the Seller Representative against under this Section 12.15 shall survive the costs, expenses Closing and liabilities which may be incurred by continue indefinitely.
(c) The Person serving as the Seller Representative may resign upon ten (10) days’ prior written notice to Pubco, the Sellers and the Purchaser Representative, provided, that the Seller Representative appoints in performing such actions.
(d) The writing a replacement Seller Representative and executes a joinder in customary form to this Agreement. Each successor Seller Representative shall be entitled to: (i) rely have all of the power, authority, rights and privileges conferred by this Agreement upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuineoriginal Seller Representative, and (iii) reasonably assume that a signatory has proper authorization the term “Seller Representative” as used herein shall be deemed to sign on behalf of the applicable include any such successor Seller or other partyRepresentatives.
Appears in 1 contract
Samples: Business Combination Agreement (East Stone Acquisition Corp)
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Sellers for all purposes under this Agreement, in including the sole, exclusive and full power and authority to act on such Seller’s behalf: (i) to consummate the transactions contemplated by this Agreement; (ii) to negotiate disputes arising under, or relating to, this Agreement; (iii) to receive and disburse to such Seller Ancillary Agreements any funds or the Parent Stock received on behalf of the Sellers contemplated by this Agreement; (iv) to withhold any amounts received on behalf of the Sellers pursuant to this Agreement or otherwise to satisfy any and in all obligations or liabilities incurred by the Sellers or the Seller Representative Engagement Agreementin the performance of its duties hereunder and thereunder; (v) to execute and deliver any amendment or waiver to this Agreement (without the prior approval of the Sellers); and (vi) to take all other actions to be taken by or on behalf of the Sellers in connection with this Agreement and the Transaction Documents; provided that (ii), (iv) and for purposes of clarity(v) may only be taken after consultation with the Sellers. Each Seller further agrees that such agency and proxy are coupled with an interest, there are no obligations therefore irrevocable without the consent of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetenceincapacity, bankruptcy bankruptcy, dissolution or liquidation of any Seller. Except in the event of fraud, all decisions and actions by the Seller and Representative shall be binding on any successor theretoupon all of the Sellers, and no Seller shall survive have the delivery right to object, dissent, protest or otherwise contest the same. The Seller Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountthis Agreement.
(b) If at Each Seller severally, for itself only and not jointly, in accordance with such Seller’s Pro Rata Percentage, agrees to indemnify and hold harmless the Seller Representative and its Representatives against any time there is more than one Person appointed to serve and all actions, liabilities, losses, damages, fines, penalties, fees, costs, expenses or amounts paid in settlement (in each case, including reasonable attorneys’ fees and expenses), whether or not involving a third party, arising as a result of its serving as the Seller Representative, any act of including those incurred by the Seller Representative will require or the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal Affiliates of the Seller Representative or any member employees, principals, fiduciaries, agents or representatives of the Advisory Group and Seller Representative or such affiliates in connection with the Closing and/or protection, defense, enforcement of any termination rights, or fulfilment of any obligations under this Agreement or any expenses in connection therewith. Any and the Escrow Agreementall payments made by or on behalf of any Seller under this Section 11.16(b) will be made free and clear of any present or future taxes, deductions, charges or withholdings and all liabilities with respect thereto.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Neither the Seller Representative nor any of its Representatives shall incur any liability to provide direction any Seller by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the Seller Representative in connection with its services under this Agreementperformance of their duties hereunder, the Escrow Agreement, the Seller Ancillary Agreements except for actions or omissions constituting intentional and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)knowing fraud. The Seller Representative and its membersRepresentatives shall have no liability in respect of any Proceeding brought against such Persons by any Seller, managers, directors, officers, contractors, agents and employees and any member regardless of the Advisory Group (collectivelylegal theory under which such liability or obligation may be sought to be imposed, the “Seller Representative Group”) will incur no liability of any kind with respect to whether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsgood faith.
(d) The In the event that the Seller Representative becomes unable or unwilling to continue in its capacity as Seller Representative, or if the Seller Representative resigns as the Seller Representative, a majority-in-number of shares of the Company (prior to the Closing) may, by written consent, appoint a new representative as the Seller Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-number of the Sellers must be delivered to the Buyer and each Seller.
(e) The Buyer shall be entitled to: (i) rely upon the Payment Schedule, (ii) to rely upon any signature believed by it to be genuineaction or decision of, and (iii) reasonably assume that a signatory has proper authorization to sign or instruction by, or any document or other paper delivered by, the Seller Representative on behalf of the applicable Sellers (without any obligation to inquire into the authority of the Seller Representative or the genuineness or correctness of such document or other partypaper or any signature of the Seller Representative), and the Buyer shall not be liable to any Seller for any action taken or omitted to be taken by the Buyer in such reliance or with respect to actions, decisions and determinations of the Seller Representative.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor Seller, Parent and each Seller Member hereby irrevocably authorizes and appoints Superior Lodging as Seller Representative to act and as such Seller GuarantorPerson’s representative and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do act on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant Person with respect to this Agreement and the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Seller Ancillary Agreements; (iii) administering Representative pursuant to this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, including the Seller Representative Engagement Agreement and exercise of the Seller Ancillary Agreements. Notwithstanding power to:
(i) receive payment of the foregoing, the Seller Representative shall have no obligation to act Purchase Price on behalf of the Sellers;
(ii) give and receive notices and communications;
(iii) authorize delivery to Buyer of cash from the Escrow Fund in satisfaction of any amounts owed to Buyer in satisfaction of claims for indemnification made by Parent pursuant to ARTICLE VIII;
(iv) agree to, except as expressly provided hereinnegotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.06;
(v) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Buyer or any Seller Party pursuant to ARTICLE VIII;
(vi) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to ARTICLE VIII;
(vii) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Escrow Agreement);
(viii) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Escrow Agreement);
(ix) engage, in the Seller Ancillary Agreements employ or appoint any agents or representatives (including attorneys, accountants and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the consultants) to assist Seller Representative in complying with its duties and obligations; and
(x) take all actions necessary or appropriate in the good faith judgment of Seller Representative for the accomplishment of the foregoing.
(b) Buyer shall be entitled to deal exclusively with Seller Representative on all matters relating to this Agreement (including ARTICLE VIII) and shall be entitled to rely conclusively (without further evidence of any ancillary agreementkind whatsoever) on any document executed or purported to be executed on behalf of any Seller Party by Seller Representative, scheduleand on any other action taken or purported to be taken on behalf of any Seller Party by Seller Representative, exhibit as being fully binding upon such Person. Notices or the Company Disclosure Letter. A decision, act, consent communications to or instruction of from Seller Representative shall constitute a decision for all notice to or from each of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Parties. Any decision or action by Seller Representative Engagement Agreement hereunder, including any agreement between Seller Representative and Buyer relating to the transactions contemplated hereby and therebydefense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Seller Parties and shall be final, binding and conclusive upon the each such Person. No Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives Party shall have any liability the right to any Seller Guarantor object to, dissent from, protest or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to otherwise contest the Seller Guarantors and the Sellerssame. The powersprovisions of this Section 10.01, immunities including the power of attorney granted hereby, are independent and rights to indemnification granted to the Seller Representative Group severable, are irrevocable and coupled with an interest and will shall not be irrevocable terminated by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority any one or more of the Seller Representatives which will be binding upon the Seller GuarantorsParties, the Sellers and the Seller Representatives, and upon such act or by a majority operation of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementLaw.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18may resign at any time, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (may be removed for any reason or no reason only by the “vote or written consent of all Seller Parties; provided, however, in no event shall Seller Representative Engagement Agreement”) with resign or be removed without the Seller Representative to provide direction to the Parties having first appointed a new Seller Representative in connection with its services under this Agreement, who shall assume such duties immediately upon the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member resignation or removal of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in . In the event of liability directly resulting from the death, incapacity, resignation or removal of Seller Representative, a new Seller Representative shall be appointed by the vote or written consent of all of the Seller Representative’s Fraud, gross negligence Parties. Notice of such vote or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless a copy of the written consent appointing such new Seller Representative Group from shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Buyer; provided, that until such notice is received, Buyer shall be entitled to rely on the decisions and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs actions of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “prior Seller Representative Expenses”as described in Section 10.01(a) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the above.
(d) Seller Representative shall not be required liable to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or Seller Party for actions taken pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or thereby. Furthermoreinvolved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with fundsadvice of counsel, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses accountants and liabilities which may be incurred other professionals and experts retained by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: conclusive evidence of good faith). The Seller Parties shall jointly and severally indemnify and hold harmless Seller Representative from and against, compensate it for, reimburse it for and pay any and all losses, Liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Seller Representative under this Agreement and the Escrow Agreement (i) rely upon the Payment Schedule“Representative Losses”), (ii) rely upon any signature believed by in each case as such Representative Loss is suffered or incurred; provided, that in the event it to be genuine, and (iii) reasonably assume is finally adjudicated that a signatory has proper authorization Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Seller Representative, Seller Representative shall reimburse the Seller Parties the amount of such indemnified Representative Loss attributable to sign on behalf of the applicable Seller such gross negligence, fraud, intentional misconduct or other partybad faith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Target Hospitality Corp.)
Seller Representative. (a) Each Seller Guarantor Upon execution of this Agreement, each of the Sellers hereby irrevocably designates and each Seller irrevocably appoints Xxxxxxx X. Xxxxxxxx, and Xxxxxxx X. Xxxxxxxx hereby accepts his appointment, as the Seller Representative and, in such capacity, as attorney in fact, agent and representative (with full power of substitution in the premises) for and on behalf of such Seller and his heirs, executors and permitted assigns with respect to claims for indemnification under ARTICLE VI and, in furtherance of the transactions contemplated by this Agreement, the taking (or not taking) by the Seller Representative of, any and all actions and making (or not making) any and all decisions to be taken or made (or that are deemed advisable) in connection with any and all transactions arising from, relating to or incident to the transactions contemplated by this Agreement or otherwise relating to or arising from this Agreement or any other agreement executed and delivered in connection with the transactions contemplated by this Agreement (excluding the Employment Agreements), including the power and authority to:
(1) take any and all action and make any and all decisions necessary or incidental to the estimation, acceptance, rejection and determination of Final Estimated Revenue, Final Excess Cash, Sellers’ Transaction Expenses, Closing Indebtedness, the Closing Purchase Price, the Reduction Amount, the OMAM Capital Contribution and the OMAM Capital Contribution Reduction Amount;
(2) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, indemnification claims under ARTICLE VI;
(3) litigate, arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to ARTICLE VI;
(4) waive any breach or default of Purchaser;
(5) receive service of process in connection with any claims under this Agreement and give and receive notices and communications under this Agreement and any other document executed and delivered in connection with the transactions contemplated by this Agreement;
(6) terminate this Agreement in accordance with its terms;
(7) receive funds, make payment of funds, or give receipt for funds; and
(8) take (or not take) all actions and to execute (or not execute) all documents necessary in the judgment of the Seller Representative for the accomplishment of the foregoing and any other post-Closing matters.
(b) Without limiting the foregoing, the Seller Representative has the full right, power and authority to act on behalf of the Sellers (or any individual Seller) with respect to the disposition, settlement or other handling of all claims under ARTICLE VI and ARTICLE II. The Sellers shall be bound by all actions taken (or not taken), decisions made (or not made) and documents executed (or not executed) by the Seller Representative in connection with the activities and matters described in this Section 4.11.
(c) The Seller Representative shall have, on behalf of each of the Sellers, 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 all or any of the Sellers and their respective heirs, executors and permitted assigns.
(d) Each of the Sellers, by executing this Agreement, hereby appoints and constitutes the Seller Representative as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful attorney-in-fact of such Seller, with full power of substitution to act in such Seller’s name and on his, her or its behalf according to the terms of this Agreement in the Seller Representative’s discretion and in general to do (or refrain from doing) all things and to perform (or not perform) all acts including, executing and delivering in the name and on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all actsagreements, as certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable by the Seller Representative in connection with this Agreement. This power of attorney and all authority hereby conferred shall be irrevocable and shall not be terminated by any act of any Seller, by operation of law, by a Seller’s death, disability, protective supervision or any other event. Without limiting the Escrow foregoing, this power of attorney is to ensure the performance of a special obligation and, accordingly, each Seller shall be deemed to have unconditionally and irrevocably waived and renounced his, her or its right to revoke or renounce this power of attorney at any time. Each Seller hereby unconditionally and irrevocably waives any and all defenses that otherwise may be available to contest, negate or disaffirm any action of the Seller Representative taken or not taken under this Agreement. Notwithstanding the power of attorney and other authority granted in this Section 4.11, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Seller (in each case, instead of the Seller Representative) having signed or given the same directly.
(e) Notwithstanding the foregoing, but subject to the Seller Representative’s discretion to pay indemnification amounts on behalf of individual Sellers pursuant to Section 4.11(b) above, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have has no obligation authority or responsibility to act on behalf of any Seller in connection with any claim, action or proceeding initiated by Purchaser directly against such Seller based on a breach by such Seller of such Seller’s individual representations, warranties or covenants hereunder.
(f) The Sellers who in the aggregate represent a majority of the Indemnity Percentage of the Sellers shall have the right to remove the then-acting Seller Representative and to appoint a successor Seller Representative without obtaining the consent of any other of the Sellers; provided, except as expressly provided hereinhowever, in that neither such removal of the Escrow Agreement, in the Seller Ancillary Agreements and in the then-acting Seller Representative Engagement Agreement, and for purposes nor such appointment of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of a successor Seller Representative shall constitute revoke the removed Seller Representative’s right to indemnification for acts or omissions prior to such removal or affect any actions, decisions or documents previously taken, made or delivered by such removed Seller Representative (to the extent reasonably relied upon by Purchaser), nor shall such removal and appointment be effective until the delivery to Purchaser of executed counterparts of a decision for writing signed by the Sellers effecting such removal and appointment, together with a written acknowledgment signed by the successor Seller Representative that he, she or it accepts the responsibility of successor Seller Representative and agrees to perform and be bound by all of the Seller Guarantors and the Sellers under provisions of this Agreement, Agreement applicable to the Seller Ancillary Agreements, the Escrow Agreement, the Representative. Each interim or successor Seller Representative Engagement shall have all of the power, authority, rights and privileges conferred by this Agreement and upon the transactions contemplated hereby and therebyoriginal Seller Representative, and in such event the term “Seller Representative” as used herein shall be final, binding and conclusive upon the deemed to include such interim or successor Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers Representative.
(without investigationg) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to The Seller Representative (in such capacityits capacity as such) under this Agreement or shall not be liable to any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act arising out of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with the acceptance or administration of its services duties under this Agreement, except to the Escrow Agreementextent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such person as a proximate result of the gross negligence or willful misconduct of the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)Representative. The Seller Representative (in its capacity as such) shall not be liable for, and its members, managers, directors, officers, contractors, agents shall be indemnified by the Sellers (on a several but not joint basis and employees and limited to each Seller’s Indemnity Percentage) for any member of the Advisory Group loss (collectively, the “Seller Representative GroupLosses”) will incur no liability of any kind with respect to any action or omission incurred by the Seller Representative in connection with the acceptance or administration of its duties under this Agreement and the Transaction Documents and the enforcement thereof, in each case as such Seller Representative Loss is incurred; provided that to the extent it is finally adjudicated that any such Seller Representative Loss or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and will reimburse the Sellers the amount of such indemnified Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, Representative Loss attributable to such gross negligence or willful misconduct. The Seller Guarantor costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be the responsibility of the Sellers will indemnifyand limited to each Seller’s Indemnity Percentage.
(h) Purchaser and each other Purchaser Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever, defend and hold harmless without any duty of further inquiry) on the instructions, actions and decisions of the Seller Representative Group from and against any and all Damagesas to the determination of Final Estimated Revenue, lossesFinal Excess Cash, claimsSellers’ Transaction Expenses, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectivelyClosing Indebtedness, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this AgreementClosing Purchase Price, the Escrow AgreementReduction Amount, the Seller Representative Engagement Agreement OMAM Capital Contribution and the Seller Ancillary AgreementsOMAM Capital Contribution Reduction Amount, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses the settlement of any claims for Damages for which any Sellers may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in indemnify the exercise or performance of any of its powers, rights, duties or privileges or Purchaser Indemnitees pursuant to this Agreement, the Escrow Agreement and any other actions taken or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred taken by the Seller Representative pursuant to this Section 4.11, and none of the parties shall have any cause of action against Purchaser or any Purchaser Indemnitee for or in performing such actions.
(d) The Seller Representative shall be entitled to: respect of (i) rely upon any action taken or not taken, decision made or instruction given by the Payment Schedule, Seller Representative pursuant to this Section 4.11 or (ii) rely action taken or not taken by Purchaser or any Purchaser Indemnitee in reliance upon any signature believed by it to be genuine, and the instructions or decisions (iiior lack thereof) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other partyRepresentative pursuant to this Section 4.11.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and By executing this Agreement, each Seller shall have irrevocably appoints authorized and appointed the Seller Representative to act Representative, as such Seller GuarantorPerson’s representative and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do act on behalf of such Seller Guarantor Person with respect to this Agreement and such Seller the Escrow Agreement and to take and refrain from taking any and all things, including executing actions and make any and all documents, which may be necessary, convenient decisions required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted to be made hereunder; (ii) receiving notices and communications taken by the Seller Representative pursuant to this Agreement and the Seller Ancillary Agreements; Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to the Purchaser of cash from the Post-Closing Adjustment Escrow Fund in satisfaction of any amounts owed to the Purchaser pursuant to Section 2.4(d) or from the Indemnification Escrow Fund in satisfaction of claims for indemnification made by the Purchaser pursuant to Article 7;
(iii) administering agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.4;
(iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by the Purchaser pursuant to Article 7;
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article 7;
(vi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Agreement;
(vii) make all elections or decisions contemplated by this Agreement and any Ancillary Agreement;
(viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Seller Representative in complying with his duties and obligations; and
(ix) take all actions necessary or appropriate in the good faith judgment of the Seller Representative for the accomplishment of the foregoing.
(b) The Purchaser shall be entitled to deal exclusively with the Seller Representative on all matters relating to this Agreement and the Seller Ancillary Agreements, including the initiation Escrow Agreement and resolution shall be entitled to rely conclusively (without further evidence of any disputes kind whatsoever) on any document executed or claims; (iv) making determinations purported to settle be executed on behalf of any dispute with respect to the purchase price adjustments contemplated Seller by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this AgreementRepresentative, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for any decision, communication, information or defending claims of indemnification under Article 8 and resolvingwriting made, settling given or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable executed by the Seller Representative in connection with this Agreement(including any funds flow, the Escrow Agreement, distribution waterfall or wire instructions provided by the Seller Representative Engagement Agreement Representative) and on any other action taken or purported to be taken on behalf of any Seller by the Seller Ancillary AgreementsRepresentative, as being fully and legally binding upon such Seller. Notwithstanding the foregoing, Notices or communications to or from the Seller Representative shall have no obligation constitute notice to act on behalf or from each of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in . Any decision or action by the Seller Representative Engagement Agreementhereunder, and for purposes of clarity, there are no obligations of including any agreement between the Seller Representative in and the Purchaser relating to the defense, payment or settlement of any ancillary agreementclaims for indemnification hereunder, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for or action of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the each such Person. No Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability the right to any Seller Guarantor object to, dissent from, protest or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to otherwise contest the Seller Guarantors and the Sellerssame. The powersprovisions of this Section, immunities including the power of attorney granted hereby, are independent and rights to indemnification granted to the Seller Representative Group severable, are irrevocable and coupled with an interest and will shall not be irrevocable terminated by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority any one of the Seller Representatives which will be binding upon the Seller GuarantorsSellers, the Sellers and the Seller Representatives, and upon such act or by a majority operation of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementlaw.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18may resign at any time, and xxxxxx accepts such appointment. Certain may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Sellers have entered into an engagement agreement according to each Seller’s Pro Rata Share (the “Seller Representative Engagement AgreementMajority Holders”) with ); provided, however, in no event shall the Seller Representative to provide direction to resign or be removed without the Majority Holders having first appointed a new Seller Representative in connection with its services under this Agreement, who shall assume such duties immediately upon the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member resignation or removal of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in . In the event of liability directly resulting from the death, incapacity, resignation or removal of the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the a new Seller Representative shall not be required to expend appointed by the vote or risk its own funds written consent of the Majority Holders. Notice of such vote or otherwise incur any financial liability in a copy of the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the written consent appointing such new Seller Representative shall not be required sent to take any action unless the Purchaser, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by the Purchaser; provided, that until such notice is received, the Purchaser shall be entitled to rely on the decisions and actions of the prior Seller Representative has been provided with funds, security or indemnities which, as described in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsSection 9.1(a) above.
(d) The Seller Representative shall not be entitled toliable to any of the Sellers for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional or willful misconduct or bad faith. The Sellers shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless the Seller Representative from and against, compensate him for, reimburse him for and pay any and all losses, Actions, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his activities as the Seller Representative under this Agreement and the Escrow Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was caused by the gross negligence, fraud, intentional or willful misconduct or bad faith of the Seller Representative, the Seller Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional or willful misconduct or bad faith. The Representative Losses shall be satisfied: (i) rely upon from the Payment Schedule, Seller Representative Expense Fund; and (ii) rely upon to the extent the amount of the Representative Losses exceeds amounts available to Seller Representative under (i), from the Sellers, severally and not jointly (in accordance with their Pro Rata Shares). The Seller Representative shall use the Seller Representative Expense Fund for use in his discretion for the payment of all costs and expenses incurred by the Seller Representative in connection with the exercise by him of the authority granted to him herein (including reasonable attorneys’ fees and expenses, the fees and expenses of any signature believed accountants or other professional advisors retained by it the Seller Representative and any portion of the fees and expenses of the Accounting Arbitrator for which the Seller Representative is liable hereunder). The Seller Representative in his discretion may also use the Seller Representative Expense Fund to satisfy any finally determined obligations that are required to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign satisfied by the Sellers. As soon as practicable after the date on behalf which the final obligation of the applicable Seller Representative under this Agreement and the Escrow Agreement has been discharged or such other partydate as the Seller Representative deems appropriate (but in no event earlier than twelve (12) months following the Closing Date), the Seller Representative shall pay any amounts remaining in the Seller Representative Expense Fund to the Sellers in accordance with their Pro Rata Shares. If any Tax reporting is required with respect to the ultimate distribution of any balance of the Seller Representative Expense Fund, then the Seller Representative will provide to the Purchaser, upon request, information regarding the amounts thereof so disbursed to be used by the Purchaser or the Purchaser Representatives in completing any required Tax reporting.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act Xx. X’Xxxx as such Seller Guarantor’s and such Seller’s exclusive its agent and true and lawful attorney-in-fact with full power of substitution to do fact, as the “Seller Representative” for and on behalf of the Sellers to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Seller or by any such Seller Guarantor against any Indemnified Party or any dispute between any Indemnified Party and any such Seller any Seller, in each case relating to this Agreement or the transactions contemplated hereby, and to take all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: other actions that are either (i) receiving and disbursing payments to be made hereunder; necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing or (ii) receiving notices and communications pursuant to this Agreement and specifically mandated by the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments terms of this Agreement. Such agency may be changed by the Sellers from time to time upon not less than thirty (30) days prior written notice to Omeros; provided, waivers of conditions and obligations under this Agreement and however, that the Seller Ancillary Agreements; (vii) asserting claims for or defending claims Representative may not be removed unless holders of indemnification under Article 8 a majority in interest of the Escrow Fund agree to such removal and resolvingto the identity of the substituted agent. Notwithstanding † DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION the foregoing, settling or compromising any such claim; (viii) taking any other actions a vacancy in the position of Seller Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Seller Guarantor Representative, and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation not receive any compensation for its services. Notices or communications to act on behalf of or from the Seller Representative shall constitute notice to or from the Sellers, except .
(b) The Seller Representative shall not be liable for any act done or omitted hereunder as expressly provided herein, Seller Representative while acting in the Escrow Agreement, in the Seller Ancillary Agreements good faith and in the exercise of reasonable judgment. The Sellers on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Seller Representative Engagement Agreementand hold the Seller Representative harmless against any loss, and for purposes of clarity, there are no obligations liability or expense incurred without gross negligence or bad faith on the part of the Seller Representative and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties hereunder, including the reasonable fees and expenses of any ancillary agreement, schedule, exhibit or legal counsel retained by the Company Disclosure LetterSeller Representative. A decision, act, consent or instruction of the Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors Sellers; and Sellers the Escrow Agent and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Omeros may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors Sellers. The Escrow Agent and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Omeros are hereby relieved from any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or person for any reason and survive the deathacts done by them in accordance with such decision, incompetenceact, bankruptcy consent or liquidation instruction of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Exclusive Technology Option Agreement (Omeros Corp)
Seller Representative. (a) Each The Blocker Seller Guarantor and each Seller irrevocably appoints Merger Participant hereby designates the Seller Representative to act as such Seller Guarantor’s execute any and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do all instruments or other documents on behalf of such the Blocker Seller Guarantor and such Seller Merger Participants, and to do any and all thingsother acts or things on behalf of the Blocker Seller and Merger Participants, including executing any and all documentswhich the Seller Representative may deem necessary or advisable, or which may be necessaryrequired pursuant to this Agreement, convenient the Escrow Agreement, Paying Agent Agreement or appropriate to facilitate otherwise, in connection with the consummation of the Stock Purchasetransactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) receiving execute the Escrow Agreement and disbursing payments to be made hereunder; Paying Agent Agreement on behalf of the Blocker Seller and Merger Participants, (ii) receiving notices act for the Blocker Seller and communications Merger Participants with respect to any adjustments pursuant to this Agreement and the Seller Ancillary AgreementsAggregate Closing Date Consideration pursuant to Section 2.8, any payment of Deferred Consideration pursuant to Section 2.11 or the 2017 Contingent Value Rights; (iii) administering give and receive notices and communications to or from Buyer and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, the Paying Agent Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, the Escrow Agreement or the Paying Agent Agreement expressly contemplates that any such notice or communication shall be given or received by the Blocker Seller Ancillary Agreementsand Merger Participants, including the initiation and resolution of any disputes or claims; individually), (iv) making determinations to settle agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, any dispute between Buyer and the Blocker Seller and Merger Participants, in each case relating to this Agreement, the Escrow Agreement or the Paying Agent Agreement, and (v) take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing. The Seller Representative shall have authority and power to act on behalf of the Blocker Seller and Merger Participants with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingdisposition, settling settlement or compromising other handling of all claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of under this Agreement, waivers of conditions and obligations under this the Escrow Agreement and the Seller Ancillary Agreements; (vii) asserting claims for Paying Agent Agreement and all rights or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers obligations arising under this Agreement, the Escrow Agreement and the Paying Agent Agreement. The Blocker Seller Ancillary Agreements; and (ix) performing Merger Participants shall be bound by all acts, as contemplated by or deemed advisable actions taken and documents executed by the Seller Representative in connection with this Agreement, the Escrow Agreement and the Paying Agent Agreement, and Buyer shall be entitled to rely on any action or decision of the Seller Representative. The Seller Representative shall receive no compensation for its services. Notices or communications to or from the Seller Representative shall constitute notice to or from the Blocker Seller and Merger Participants. The Seller Representative shall act in good faith in connection with its obligations hereunder. Notwithstanding anything herein to the contrary, the Seller Representative may not agree to settle any claim that would impose any material, non-monetary obligation on a Rollover Seller or Merger Participant. The Seller Representative shall provide each Merger Participant and Rollover Seller with written notice of any material actions taken pursuant to this Section 11.21.
(b) In performing the functions specified in this Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall not be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability liable to any Blocker Seller Guarantor or any Seller Merger Participant other than for liability as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement gross negligence, willful misconduct, fraud or any Seller Ancillary Agreement will be considered a payment by Acquiror to bad faith on the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation part of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of . The Blocker Seller and Merger Participants shall severally (based on the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers Blocker Seller’s and the Seller Representativeseach Merger Participant’s respective Pro Rata Shares), and upon such act by a majority of the Seller Representativesnot jointly, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend indemnify and hold harmless the Seller Representative Group from and against any and all DamagesLoss incurred without gross negligence, losseswillful misconduct, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs fraud or bad faith on the part of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) and arising out of or in connection with the Seller Representative’s execution and performance acceptance or administration of this Agreement, the Escrow Agreement, its duties hereunder (other than Administrative Costs reimbursed or paid from the Seller Representative Engagement Agreement and Expense Fund). If not paid directly to the Seller Ancillary AgreementsRepresentative by the Blocker Seller and Merger Participants, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses Losses may be recovered first, by the Seller Representative from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers Blocker Seller and Merger Participants pursuant to Section 2.8(e) and in accordance with the terms hereof and of the Escrow Agreement and Paying Agent Agreement, at the time of distribution, and second, directly such recovery will be made from the Sellers. The Sellers acknowledge that the Blocker Seller Representative shall not be required and Merger Participants according to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionstheir respective Pro Rata Share.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller Party hereby irrevocably appoints the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful its representative, attorney-in-fact and agent, with full power of substitution to do act in the name, place and stead of such Seller Party with respect to the Transactions, and to act on behalf of such Seller Guarantor Party in any amendment of or litigation involving this Agreement and to do or refrain from doing all such Seller any further acts and all things, including executing any and to execute all such documents, which may be necessary, convenient as Seller Representative shall deem necessary or appropriate in conjunction with any of the Transactions, including the power:
(i) to facilitate take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Seller Parties to consummate the Transactions;
(ii) to negotiate, execute or deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted in connection with the consummation of the Stock Purchase, including: Transactions (iit being understood that such Seller Party shall execute and deliver any such document which Seller Representative agrees to execute);
(iii) receiving to give and disbursing payments to be made hereunder; (ii) receiving receive all notices and communications pursuant to be given or received under this Agreement and the Seller Ancillary Agreements; (iii) administering to receive service of process in connection with any claims under this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; Agreement;
(iv) making determinations to settle take all actions that under this Agreement may be taken by the Seller Parties and to do or refrain from doing any further act or deed on behalf of the Seller Parties that Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as such Seller Party could do if personally present;
(v) to take all actions in connection with the review, negotiation, dispute and agreement with respect to the purchase price adjustments contemplated by Closing Purchase Price under Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; 1.7;
(vi) agreeing to amendments of this Agreementtake any and all actions, waivers of conditions make any and obligations all decisions and determinations (including settlement decisions) and other actions under this Agreement and pursuant to ARTICLE 7 and the Seller Ancillary AgreementsEscrow Agreement (including authorizing the disbursement of funds thereunder); and
(vii) asserting claims for any and all actions required or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable permitted to be taken by the Seller Representative under this Agreement or the Escrow Agreement with respect to any claims (including the defense and settlement thereof) made by a Purchaser Indemnified Party under Section 7.3 (including the exercise of the power to (x) authorize the delivery of any or all of the Escrow Fund to a Purchaser Indemnified Party in satisfaction of claims by a Purchaser Indemnified Party, (y) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, and (z) take all actions necessary in the judgment of the Seller Representative for the accomplishment of the foregoing). Each of the Seller Parties shall be bound by all such actions taken by the Seller Representative. The Seller Representative shall not be liable to the Seller Parties for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Seller Representative of the Seller Representative’s duties or the exercise of its rights under this Agreement, Agreement or the Escrow Agreement, except in the case of its bad faith or willful misconduct, as finally determined by a court of competent jurisdiction. No bond shall be required of the Seller Representative. The Seller Representative Engagement may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Seller Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement and or the Seller Ancillary AgreementsEscrow Agreement. Notwithstanding Without limiting the generality of the foregoing, the Seller Representative shall have no obligation the full power and authority to act on behalf of interpret all the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements terms and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement, and to consent to any amendment hereof or thereof on behalf of all Seller Parties and their respective successors and assigns. In all matters relating to the Escrow Fund, the Seller Representative shall be the only party entitled to assert the rights of the Seller Parties.
(b) This power of attorney is a special power of attorney coupled with an interest and is irrevocable, and shall survive the Closing and death, disability, legal incapacity, bankruptcy, insolvency, dissolution, or cessation of existence of any Seller Party. This power of attorney may be exercised by Seller Representative by listing Seller Parties executing any document with the single signature of Seller Representative acting as attorney-in-fact for such Seller Party.
(c) Each Seller Party hereby forever releases and discharges Seller Representative from any and all liability which may arise in connection with Seller Representative’s performance in good faith and any acts or omissions which Seller Representative takes on behalf of such Seller Party in accordance with the terms of this limited power of attorney or otherwise in accordance with this Agreement, except in the case of bad faith or willful misconduct of Seller Representative.
(d) Seller Representative is authorized to act on behalf of the Seller Parties, and Purchaser shall be entitled to rely on any and all action taken by Seller Representative without any liability to, or obligation to inquire of, the Seller Parties. Purchaser is expressly authorized to rely on the genuineness of the signature of Seller Representative and, upon receipt of any writing which reasonably appears to have been signed by Seller Representative, Purchaser may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(e) After the Closing, the Seller Representative may resign at any time by giving thirty (30) days’ notice to Purchaser and the Seller Parties; provided, however, that such resignation shall not be effective unless and until a successor Seller Representative has been appointed and accepts such position under the terms hereof and of the Escrow Agreement. In such event, the Seller Representative shall appoint its successor, which successor must be reasonably acceptable (x) to Purchaser and (y) to the Alpine Owner. After the Closing if the Seller Representative dies or is otherwise unable to perform his obligations under this Agreement or, in the case of a Seller Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the successor Seller Representative shall be selected by the Company, which successor must be reasonably acceptable to Purchaser. The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers shall have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction reasonable access to the Seller Representative in connection with books and records and other information about the Company and its services assets, business and financial condition and the reasonable assistance of the Company’s officers and employees for purposes of performing its duties and exercising its rights hereunder and under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge provided that the Seller Representative shall treat confidentially and not be required disclose any nonpublic information from or about the Company (except on a need to expend know basis to individuals who agree to treat such information confidentially) except as appropriate or risk its own funds necessary in any litigation, arbitration or otherwise incur any financial liability other proceeding by or against it in the exercise connection with this Agreement or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsTransactions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (BOSTON OMAHA Corp)
Seller Representative. (a) Each Seller Guarantor and each Diamond irrevocably constitutes and appoints Xxxxxxx X. Xxxxxxx (the “Seller irrevocably appoints Seller Representative to act Representative”) as such Seller Guarantor’s and such Seller’s exclusive agent and Diamond’s true and lawful attorney-in-fact with full power of substitution to do on behalf and agent and authorizes him acting for such Seller and Diamond and in the name, place and stead of such Seller Guarantor and such Seller or Diamond, in any and all things, including executing any capacities to do and all documents, which may be necessary, convenient perform every act and thing required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted to be made hereunder; (ii) receiving notices and communications pursuant to done in connection with the transactions contemplated by this Agreement and the other Seller Ancillary Agreements; (iii) administering this Agreement Closing Documents, as fully to all intents and purposes as such Seller or Diamond might or could do in person. Each Seller and Diamond grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with such transactions, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Seller Ancillary Agreements, including the initiation Representative may lawfully do or cause to be done by virtue hereof. Each Seller and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors Diamond acknowledges and the Sellers pursuant to Article 12; (vi) agreeing to amendments agrees that upon execution of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising upon any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable delivery by the Seller Representative in connection with this Agreementof any waiver, amendment, agreement, opinion, certificate or other document executed by the Escrow AgreementSeller Representative, such Seller and Diamond shall be bound by such documents as fully as if such Seller had executed and delivered such documents. Each Seller’s and Diamond’s appointment of the Seller Representative Engagement Agreement is irrevocable and is coupled with an interest.
(b) Upon the death, disability or incapacity of the initial Seller Ancillary Agreements. Notwithstanding the foregoingRepresentative appointed pursuant to Section 6.02(e)(i) above, a replacement for the Seller Representative shall have no obligation be appointed by Diamond, to act on behalf of carry out the Sellers, except as expressly provided herein, in duties and perform the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementhereunder.
(c) The Each Seller Representative acknowledges and Diamond agrees that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Purchaser shall be entitled to rely on any action taken by the Seller Representative to provide direction to on behalf of the Seller Representative in connection with its services under this AgreementSellers (each, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the an “Advisory GroupAuthorized Action”), and that each Authorized Action shall be binding on each Seller as fully as if such Seller had taken such Authorized Action. The Seller Representative Sellers and Diamond jointly and severally agree to pay, and to indemnify and hold harmless Purchaser, its Affiliates (including the Company after the Closing), and their respective members, managers, officers, directors, officersemployees, contractorsagents, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group representatives from and against any and all DamagesLosses which they may suffer, lossessustain, claimsor become subject to, liabilitiesas the result of any claim by any Seller or Diamond that an Authorized Action is not binding on, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectivelyenforceable against, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall not be entitled to: (i) rely upon liable to the Payment Schedule, (ii) rely upon Sellers for any signature believed by it to be genuineact done or omitted hereunder as the Seller Representative while acting in good faith, and (iii) reasonably assume that a signatory has proper authorization any act done or omitted pursuant to sign the advice of counsel shall be conclusive evidence of such good faith. The Sellers shall severally indemnify the Seller Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on behalf the part of the applicable Seller Representative and arising out of or other partyin connection with the acceptance or administration of his duties hereunder.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Enterprise Financial Services Corp)
Seller Representative. (a) Each The Seller Guarantor and each Seller irrevocably appoints Parties hereby appoint Exxx Xxxxxxxxxx, as the Seller Representative (the “Seller Representative”), to act as such Seller Guarantor’s agent for and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of each Seller Party to give and receive notices and communications, to agree to, negotiate and enter into, on behalf of the Seller Parties, amendments, consents and waivers under this Agreement pursuant to the terms set forth herein, to make and receive payments on behalf of the Seller Parties pursuant to the terms set forth herein, to take such Seller Guarantor other actions as authorized by this Agreement, and such Seller any and to take all things, including executing any and all documents, which may be necessary, convenient actions necessary or appropriate to facilitate in the consummation judgment of the Stock PurchaseSeller Representative for the accomplishment of the foregoing. If at any time the Seller Representative resigns, including: (i) receiving and disbursing payments dies or becomes incapable of acting, the Seller Parties shall choose another person to be made hereunder; (ii) receiving notices and communications act as the Seller Representative under this Agreement. The Seller Indemnitees may not make a claim for indemnity against Buyer pursuant to this Agreement and except through the Seller Ancillary Agreements; (iii) administering this Agreement and Representative. Once the Seller Ancillary AgreementsRepresentative has initiated such a claim for indemnity, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors Representative may enforce, prosecute and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and settle such claim without further directions from the Seller Ancillary Agreements; (vii) asserting claims for or defending claims Indemnitees, and all acts and decisions of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, such matter shall be binding on all the Seller Representative Engagement Agreement and Indemnitees. No bond shall be required of the Seller Ancillary Agreements. Notwithstanding the foregoingRepresentative, and the Seller Representative shall have receive no obligation compensation for services provided hereunder. Notices or communications to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in or from the Seller Representative Engagement Agreementshall constitute notice to or from each Seller Party.
(a) The Seller Representative will be entitled to engage such counsel, experts and other agents as the Seller Representative deems necessary or proper in connection with performing the Seller Representative’s obligations hereunder, and will be promptly reimbursed by the Seller Parties for purposes of clarityall reasonable expenses, there are no obligations of disbursements and advances incurred by the Seller Representative in such capacity upon demand. Each Seller Party shall indemnify and hold harmless the Seller Representative pro rata based upon such Seller Party’s pro rata share of the equity interests in the Seller as of the Closing Date, from any ancillary agreementand all Losses that are incurred by the Seller Representative as a result of actions taken, scheduleor actions not taken, exhibit by the Seller Representative herein, except to the extent that such Losses arise from the gross negligence or willful misconduct of the Company Disclosure LetterSeller Representative. The Seller Representative shall not be liable to the Seller Parties for any act done or omitted hereunder as the Seller Representative, excluding acts which constitute gross negligence or willful misconduct.
(b) A decision, act, consent or instruction of the Seller Representative in respect of any action under this Agreement shall constitute a decision for of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Parties and shall be final, binding and conclusive upon the each such Seller Guarantors Party and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Buyer may rely upon any such decision, act, consent or instruction of the Seller Representative hereunder as being the decision, act, consent or instruction of each and every such Seller Party. Buyer is hereby relieved from any Liability to any Person (including any Seller Party) for any acts done by the Buyer in accordance with such decision, act, consent or instruction of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountRepresentative.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller and Member Guarantor hereby irrevocably constitutes and each Seller irrevocably appoints Seller Representative Txxxxx X. Xxxxxx, or his successor as determined by Sellers with prompt written notice to act the Purchaser, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of such Seller and Member Guarantor, with full power powers of substitution to do act in the name, place and stead of such Seller and Member Guarantor with respect to the performance on behalf of such Seller and Member Guarantor under the terms and provisions hereof and to do or refrain from doing all such Seller any further acts and all things, including executing any and to execute all such documents, which may be necessary, convenient as the Seller Representative shall deem necessary or appropriate to facilitate in connection with any transaction contemplated hereunder, including the consummation of the Stock Purchase, including: power to:
(i) receiving act for such Seller and disbursing Member Guarantor with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of such Seller and Member Guarantor relating only to monetary payments to be made hereunder; which are held under the Escrow Agreement;
(ii) receiving notices amend or waive any non-material provision hereof (including any condition to the Closing) in any manner that does not differentiate among any Seller;
(iii) employ, obtain and communications rely upon the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Seller Representative;
(iv) receive any portion of the Purchase Price or any other payment due from the Purchaser to such Seller pursuant to this Agreement Agreement;
(v) act for each Seller with respect to all Purchase Price matters and the all Purchase Price adjustments matters referred to herein;
(vi) act for each Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Escrow Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; ;
(vii) asserting claims incur any expenses, liquidate and withhold assets received on behalf of such Seller prior to their distribution to such Seller to the extent of any amount that the Seller Representative deems necessary for payment of or defending claims of indemnification under Article 8 as a reserve against expenses, and resolving, settling pay such expenses or compromising any deposit the same in an interest-bearing bank account established for such claim; purpose;
(viii) taking receive all notices, communications and deliveries hereunder on behalf of such Seller and Member Guarantor; and
(ix) do or refrain from doing any other actions further act or deed on behalf of such Seller and Member Guarantor that the Seller Representative deems necessary or appropriate, in the sole discretion of the Seller Representative, relating to the subject matter hereof as fully and completely as such Seller and Member Guarantor could do if personally present and the Sellers under this Agreement acting and as though any reference to such Seller and Member Guarantor herein was a reference to the Seller Ancillary Agreements; Representative.
(b) The appointment of the Seller Representative shall be deemed coupled with an interest and (ix) performing all actsshall be irrevocable, and any other individual or entity may conclusively and absolutely rely, without inquiry, upon any action of the Seller Representative as the act of each Seller and Member Guarantor, as contemplated applicable, in all matters referred to herein. Each Seller and Member Guarantor hereby ratifies and confirms that the Seller Representative shall do or cause to be done by virtue of the Seller Representative’s appointment as Seller Representative of such Seller and Member Guarantor. The Seller Representative shall act for each Seller and Member Guarantor, as applicable, on all of the matters set forth herein in the manner the Seller Representative believes to be in the reasonable best interest of such Seller and Member Guarantor, but the Seller Representative shall not be responsible to any Seller or deemed advisable Member Guarantor for any loss or damage such Seller may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties hereunder, other than any loss or damage arising from the Seller Representative’s willful misconduct or gross negligence in connection with this Agreementthe performance of the Seller Representative’s duties hereunder.
(c) Each Seller and Member Guarantor hereby expressly acknowledges and agrees, the Escrow Agreement, that the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the such Seller Ancillary Agreements and in the Seller Representative Engagement AgreementMember Guarantor notwithstanding any dispute or disagreement, and for purposes of clarity, there are no obligations of the Seller Representative in that any ancillary agreement, schedule, exhibit individual or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative entity shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to rely on any and all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission actions taken by the Seller Representative in connection with hereunder without liability to, or obligation to inquire of, any Seller and Member Guarantor, as applicable. In the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, event the Seller Representative Engagement Agreement and resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Ancillary AgreementsRepresentative shall be Dxxxxx X. Xxxxxxxx; provided, except however, that in the event of liability directly resulting from for any reason Dxxxxx X. Xxxxxxxx is removed, unable or unwilling to perform as the successor Seller Representative’s Fraud, gross negligence then one of Jxxxx X. Xxxxxxxxx XX or willful misconductJxxx X. Xxxxx, in that order, shall appoint a successor; provided, further, however, that such Seller Representative may be removed by a majority vote of the Member Guarantors’ interest as set forth in Schedule 2. The Seller Guarantor Sellers (jointly and Sellers will indemnify, defend severally) and each Member Guarantors (severally only based on and limited to such Member Guarantor’s percentage listed in Schedule 2 of the Purchase Price) shall indemnify and hold harmless the Seller Representative Group harmless from and against any and all Damagesliabilities, losses, claims, liabilities, fees, costs, damages and expenses (including attorneys’ fees, disbursements and costs ) reasonably incurred or suffered as a result of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out performance of or in connection with the Seller Representative’s execution and performance duties hereunder, except to the extent arising from the willful misconduct or gross negligence of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable Representative.
(d) Notwithstanding anything to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermorecontrary herein, the Seller Representative shall not be required authorized to take modify, amend or waive any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsmaterial term of this Agreement.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
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Seller Representative. By the execution and delivery of this Agreement, each of Sellers hereby irrevocably constitutes and appoints Xxx Xxxxx (a) Each “Seller Guarantor and each Seller irrevocably appoints Seller Representative to act Representative”), as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact of Sellers with full power of substitution to do on behalf act in the name, place and stead of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Sellers with respect to the purchase price adjustments contemplated transfer of the Equity Interests owned by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against Sellers in accordance with the Seller Guarantors terms and the Sellers pursuant to Article 12; (vi) agreeing to amendments provisions of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of Sellers in any litigation or arbitration involving the SellersTransaction Documents and the transactions contemplated thereby, except to take or refrain from taking any action by a Seller under this Agreement following the Closing and to do or refrain from doing all such further acts and things, and execute all such documents as expressly provided herein, Seller Representative shall deem necessary or appropriate in connection with the Escrow transactions contemplated by this Agreement, including, without limitation, the power:
(a) to act for Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the Seller Ancillary Agreements power to compromise any indemnity claim on behalf of Sellers and in the to transact matters of litigation;
(b) to execute and deliver all ancillary agreements, certificates and documents that Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations deems necessary or appropriate in connection with the consummation of the transactions contemplated by the Transaction Documents;
(c) to do or refrain from doing any further act or deed on behalf of Sellers that Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of the Transaction Documents as fully and completely as Sellers could do if personally present; and
(d) to receive service of process in connection with any ancillary agreement, schedule, exhibit or claims under the Company Disclosure LetterTransaction Documents. A decision, act, consent or instruction The appointment of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are deemed coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor theretoirrevocable, and shall survive the delivery Parent, Buyer, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require in all matters referred to herein. All notices required to be made or delivered by Parent or Buyer after the act of a majority of the Seller Representatives which will Closing to Sellers shall be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled made to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the benefit of Sellers and shall discharge in full all such notice requirements of Parent or Buyer to Sellers with respect thereto. Sellers hereby confirm all that Seller Guarantors and the Representative shall do or cause to be done by virtue of his appointment as Seller Representative of Sellers. Seller Representative shall act for Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority on all of the shares of matters set forth in the Company Stock held by Transaction Documents in the Sellers immediately prior to the Agreement Date to act as the manner Seller Representative believes to be in the best interest of Sellers and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) consistent with the Seller Representative to provide direction to obligations under the Seller Representative in connection with its services under this AgreementTransaction Documents, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the but Seller Representative shall not be required responsible to expend Sellers for any Losses Sellers may suffer by the performance by Seller Representative of his duties under the Transaction Documents, other than Losses arising from willful violation of Law by Seller Representative or risk its own funds or otherwise incur any financial liability gross negligence in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the by Seller Representative shall not be required to take any action unless of his duties under this Section 11.17. Each Seller acknowledges that, after the Closing, Seller Representative has been provided with funds, security will be serving as an officer or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf director of the applicable Seller or other partyCompanies and may have a conflict of interest in serving in such capacity.
Appears in 1 contract
Seller Representative. (a) Each Seller and Guarantor and each Seller hereby irrevocably appoints the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful Guarantor’s representative, attorney-in-fact and agent, with full power of substitution (and such appointment is coupled with an interest and is irrevocable) to do act in the name, place and stead of such Seller and Guarantor, to act on behalf of such Seller and Guarantor in any amendment of or litigation or arbitration involving this Agreement, including defending, negotiating, settling or otherwise dealing with claims under Articles 1 or 8, and to do or refrain from doing all such Seller any further acts and all things, including executing any and to execute all such documents, which may be necessary, convenient as the Seller Representative deems necessary or appropriate in conjunction with any of the Transactions, including the power:
(i) to facilitate take all action necessary or desirable in connection with the waiver of any condition to the obligations of Sellers to consummate the Transactions;
(ii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the Stock Purchase, including: Transactions (iit being understood that each Seller and Guarantor will be deemed to have executed and delivered any such documents which the Seller Representative agrees to execute);
(iii) receiving to terminate this Agreement if Sellers are entitled to do so;
(iv) to give and disbursing payments to be made hereunder; (ii) receiving receive all notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes be given or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations received under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims Transactions and to receive service of indemnification under Article 8 and resolving, settling or compromising process in connection with any such claim; (viii) taking any other actions of the Seller Guarantor Claim Notice and the Sellers Transactions, including service of process; and
(v) to take all actions that under this Agreement and the Seller Ancillary Agreements; Transactions may be taken by Sellers or Guarantor and (ix) performing all acts, as contemplated by to do or deemed advisable by refrain from doing any further act or deed on behalf of Sellers and Guarantor that the Seller Representative deems necessary or appropriate in connection with its sole discretion relating to the subject matter of this AgreementAgreement and the Transactions as fully and completely as such Seller or Guarantor could do if personally present or represented.
(b) The Seller Representative will not be liable to any Seller or Guarantor for any act taken or omitted by it as permitted under this Agreement and the Transactions, the Escrow except if such act is taken or omitted in bad faith or by willful misconduct. The Seller Representative will also be fully protected against Sellers and Guarantor, and will not be liable in any way, in relying upon any written notice, demand, certificate or document that he in good faith believes to be genuine (including facsimiles thereof). As to any matters not expressly provided for in this Agreement, the Seller Representative Engagement will not be required to exercise any discretion or take any action on behalf of Sellers or Guarantor.
(c) Sellers agree, severally according to their Pro Rata Share, but not jointly, to indemnify the Seller Representative for, and to hold the Seller Representative harmless against, any loss, liability or expense arising out of, relating to or resulting from any action taken or omitted to be taken without gross negligence, willful misconduct or bad faith on the part of the Seller Representative, in connection with the Seller Representative’s carrying out his duties under this Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoingTransactions, including costs and expenses of successfully defending the Seller Representative shall have no obligation to act on behalf against any claim of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the liability with respect thereto. The Seller Representative Engagement Agreementmay consult with counsel, accountants or experts of his own choice and will have full and complete authorization and will not be liable for purposes any action taken or omitted to be taken in good faith in accordance with the opinion of claritysuch counsel, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit accountants or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers experts.
(without investigationd) and none of Acquiror If Mxxxxx (or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacityhis successors) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed becomes unable to serve as the Seller Representative, such other Person as may be designated by the Sellers for Mxxxxx (or his successor) will succeed as the Seller Representative.
(e) The Seller Representative’s reasonable out-of-pocket expenses will be paid by Sellers as mutually agreed by Sellers.
(f) As a term of this Agreement, each Seller and Guarantor agrees, in addition to the foregoing, that Buyer and any act of its Affiliates shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative will require the act of a majority of the Seller Representatives as to any matter in which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior is authorized to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services take action under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and no party hereunder shall have any cause of action against Buyer or its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to Affiliates for any action taken by Buyer or omission by its Affiliates in reliance upon the Seller Representative in connection with instructions or decisions of the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Sellers irrevocably make, constitute and initially appoint Xxxxxx X. Xxxxxx, Xx. (the “Seller Guarantor and each Seller irrevocably appoints Seller Representative to act Representative”) as such Seller Guarantor’s and such Seller’s exclusive agent and their true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller Sellers any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchasetransactions contemplated by this Agreement and the other Transaction Documents, including: (i) receiving and disbursing payments to be made hereunderunder this Agreement or the Transaction Documents; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreementsother Transaction Documents; (iii) administering this Agreement and the Seller Ancillary Agreementsother Transaction Documents, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect as to the purchase price adjustments contemplated by Section 2.3(b)calculation and allocation of the Purchase Price and any component thereof; (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 128; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreementsother Transaction Documents; and (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; .
(viiib) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by If the Seller Representative determines, in connection with his sole discretion, that further authorization by any Sellers is required on any matters concerning this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement is entitled to seek such further authorization from Sellers prior to acting on their behalf. In such event and on any other matter requiring or permitting Sellers to vote in this Section 5.10, each Seller will have a number of votes equal to the Shares owned by that Seller immediately prior to Closing and the Seller Ancillary Agreements. Notwithstanding the foregoing, authorization of a majority of such Shares will be binding on all Sellers and will constitute such authorization by all Sellers.
(c) Buyer will be fully protected in dealing with the Seller Representative shall have no obligation with respect to act on behalf of the Sellers, except as expressly provided herein, in the Escrow this Agreement, in the Seller Ancillary Agreements other Transaction Documents and in the Seller Representative Engagement Agreement, transactions contemplated by it and for purposes of clarity, there are no obligations them and may rely upon the authority of the Seller Representative in any ancillary agreement, schedule, exhibit or to act as the Company Disclosure Letter. A decision, act, consent or instruction agent of Seller Representative shall constitute a decision Sellers for all of the Seller Guarantors and the Sellers purposes under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement other Transaction Documents and the transactions contemplated hereby by it and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliancethem. Any payment by Acquiror Buyer to the Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement other Transaction Document will be considered a payment by Acquiror Buyer to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to appointment of the Seller Representative Group are is coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive reason. This power of attorney will not be affected by the death, incompetence, bankruptcy disability or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller incapacity of the whole or principal pursuant to any fraction of applicable Legal Requirement. The Seller Representative will have no individual liability to Buyer under this Agreement arising from his, her or its interest in actions as the Adjustment Escrow AmountSeller Representative.
(bd) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, all the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror Buyer will, in reliance thereonon such act, be entitled to all benefits and protections of this Section 13.18(b5.10(c) as though such act were the unanimous act of all the Seller Representatives. Any Seller Representative may resign as a the Seller Representative at any time by written notice delivered to the Seller Guarantors, the other Sellers and to AcquirorBuyer. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror Buyer in writing of such determination. Following the time that Acquiror Buyer is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein in this Agreement and Xxxxxxxx Buyer is so notified in writing, the Sellers will collectively will act as the Seller Representative, with decisions made by in the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementmanner specified in Section 5.10(b).
(ce) The Seller Representative acknowledges that it has having carefully read and understands this Section 13.185.10, accepts such appointment and designation, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (promises to act in the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to capacity as the Seller Representative in compliance with and conformance to the provisions of this Section 5.10.
(f) The Seller Representative will not be liable to any Party or other Person for any error of judgment or any act done or action taken or omitted by Seller Representative in good faith or for any mistake in fact or Law, or for anything that Seller Representative may do or refrain from doing in connection with its services under this AgreementAgreement or the other Transaction Documents, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)except for those actions or omissions constituting fraud or willful misconduct. The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and may seek the advice of legal counsel or other professional advisors in the event of any member dispute or question as to the construction of any of the Advisory Group (collectivelyprovisions of this Agreement or the other Transaction Documents or Seller Representative’s duties under this Agreement or the Transaction Documents, the “and Seller Representative Group”) will incur no liability of to Sellers or any kind other Person and will be fully protected with respect to any action taken, omitted or omission suffered by Seller Representative in good faith in accordance with the opinion of such counsel.
(g) The fees, costs and expenses of the Seller Representative incurred following the Closing Date, including any fees and expenses reasonably incurred by the Seller Representative in connection with retention or engagement of any legal counsel, accountants, experts (including expert witnesses), consultants and other Representatives, whether involving a claim for indemnification or otherwise, including any fees, costs and expenses of the Accounting Firm hereunder, shall be paid and satisfied first from the Seller Reserve Funds. To the extent the balance of the Seller Reserve Funds is insufficient for any such fees, costs and expenses, such fees, costs and expenses shall be paid by Sellers (jointly and severally in accordance with their respective Share ownership as of immediately prior to the Closing) within five (5) Business Days after delivery of a written request therefor by the Seller Representative (together with reasonable documentation of such fees, costs and expenses). If, at any time, the Seller Representative’s services pursuant , in his sole discretion, determines that additional fees, costs and expenses are unlikely to this Agreement, the Escrow Agreement, be incurred by the Seller Representative Engagement in connection with this Agreement and the other Transaction Documents, or the transactions contemplated hereby and thereby, or that surplus amounts are held as Seller Ancillary AgreementsReserve Funds, except then the Seller Representative may release all or any portion of such excess Seller Reserve Funds to Sellers in accordance with the event of liability directly resulting respective percentages set forth on Schedule 8.6 (subject to adjustment to account for any fees, expenses, costs or other amounts remitted from the Seller Representative’s FraudReserve Funds solely on behalf of, gross negligence or willful misconduct. The Seller Guarantor otherwise allocable to, any particular Sellers).
(h) Sellers shall, jointly and Sellers will indemnifyseverally (in accordance with their Share ownership immediately prior to the Closing), defend indemnify and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, damages, claims or expenses (including attorneys' fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative arising out of or relating to the performance of his duties and obligations as Seller Representative under this Agreement or any other Transaction Document, or under any other document or agreement executed and delivered in performing connection with the transactions contemplated hereby or thereby, except to the extent as the consequence of fraud or willful misconduct on the part of such actionsSeller Representative.
(di) The Sellers’ Representatives shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller hereunder. The Seller Representative shall not be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon liable to any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other partyPerson for any act or omission by the Seller Representative or any agent employed or engaged by the Seller Representative hereunder or under any other document entered into in connection herewith, except that Seller Representative shall not be relieved of any liability imposed by law for fraud or willful misconduct by the Seller Representative. The Seller Representative shall not be liable to Sellers for any apportionment or distribution of payments made by the Seller Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Seller to whom payment was due, but not made, shall be to recover from other Sellers any payment in excess of the amount to which they are determined to have been entitled. The Seller Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Transaction Document.
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Seller Representative. (a) Each Seller Guarantor By the execution and delivery of this Agreement, each Seller of the Sellers hereby irrevocably constitutes and appoints Seller Representative to act Axx Xxxx Jxxxxxx as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of the Sellers with full power of substitution to do act in the name, place and stead of the Sellers with respect to the transfer of the Shares owned by the Sellers to the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the Sellers in any litigation or arbitration involving this Agreement, to do or refrain from doing all such Seller Guarantor further acts and such Seller any and all things, including executing any and to execute all documents, which may be necessary, convenient such documents as the Seller Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(a) to facilitate act for the Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Sellers and to transact matters of litigation;
(b) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Seller Representative deems necessary or appropriate in connection with the consummation of the Stock Purchasetransactions contemplated by this Agreement;
(c) to execute and deliver all amendments and waivers to this Agreement that the Seller Representative deems necessary or appropriate, including: whether prior to, at or after the Closing;
(id) receiving to receive funds, make payments of funds, and disbursing payments give receipts for funds;
(e) to receive funds for the payment of expenses of the Sellers and apply such funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the Sellers that the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Sellers could do if personally present; and
(g) to receive service of process in connection with any claims under this Agreement. The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Seller Representative in all matters referred to herein. All notices required to be made hereunder; (ii) receiving notices or delivered by the Buyer to the Sellers described above in this Section 15.14 shall be made to the Seller Representative for the benefit of the Sellers and communications pursuant shall discharge in full all notice requirements of the Buyer to the Sellers with respect thereto. The Sellers hereby confirm all actions that the Seller Representative shall do or cause to be done by virtue of its appointment as the Seller Representative of the Sellers. The Seller Representative shall act for the Sellers on all of the matters set forth in this Agreement and in the manner the Seller Ancillary Agreements; (iii) administering Representative believes to be in the best interest of the Sellers and consistent with the obligations under this Agreement, but the Seller Representative shall not be responsible to the Sellers for any loss or damages the Sellers may suffer by the performance of its duties under this Agreement, other than loss or damage arising from willful violation of Law or gross negligence in the performance of its duties under this Agreement. Sellers agree jointly and severally to indemnify, defend and hold harmless the Seller Representative from and against any and all loss, damage, liability and expense that may be incurred by the Seller Representative arising out of or in connection with its appointment as Seller Representative under this Agreement and (except such as may result from the Seller Ancillary AgreementsRepresentative’s willful violation of Law or gross negligence in the performance of its duties under this Agreement), including the initiation and resolution legal costs of defending itself against any disputes claim or claims; (iv) making determinations to settle any dispute liability in connection with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations its performance under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 all other documents and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor agreements executed and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable delivered by the Seller Representative in connection with this Agreement. The Seller Representative, the Escrow Agreement, the each Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, Buyer expressly acknowledge that the Seller Representative shall have no obligation authority or responsibility to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in connection with any manner claim, action or for any reason and survive the death, incompetence, bankruptcy or liquidation of any proceeding initiated against such Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment pursuant to a breach by any such Seller of the whole Such Seller’s individual representations, warranties or any fraction of his, her or its interest in the Adjustment Escrow Amountcovenants hereunder.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
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Seller Representative. (a) Each Seller Guarantor irrevocably authorizes and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s its lawful representative, exclusive agent, proxy and such Seller’s exclusive agent and true and lawful attorney-in-fact (with full power of substitution to do substitution), as Seller Representative for and on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, includingSellers to: (i) receiving give and disbursing payments receive notices and communications relating to be made hereunderthis Agreement, any Transaction Document or any of the transactions and other matters contemplated hereby and thereby; (ii) receiving notices to authorize distribution to any Indemnified Party from the Indemnification Escrow in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to any indemnification claim and/or to any payment to any Indemnified Party from the Indemnification Escrow in satisfaction of any such claim, to agree to, negotiate, enter into settlements and communications pursuant compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either necessary or appropriate in the judgment of Seller Ancillary AgreementsRepresentative for the accomplishment of the foregoing or specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Buyer; provided, however, that Seller Representative may not be removed unless holders of a two-thirds interest of the Escrow Amount agree to such removal and to the identity of the substituted agent. Seller Representative may resign upon 30 days prior written notice to the Indemnifying Parties and Buyer. Any vacancy in the position of Seller Representative may be filled by the holders of a majority in interest of the Escrow Amount. No bond shall be required of Seller Representative, and Seller Representative on the date hereof shall not receive any compensation for its services, but any Person subsequently appointed to serve as Seller Representative may receive compensation for its services. Notices or communications to or from Seller Representative shall constitute notice to or from the Indemnifying Parties. For the avoidance of doubt, in no event may Seller Representative take any action which would (iiix) administering increase the liabilities or obligations of any Seller beyond what is contemplated by this Agreement or any Transaction Document or (y) cause any Seller to become liable for any indemnification obligations in excess of their Pro Rata Share of the Escrow Amount, without the prior written consent of such Seller.
(b) Seller Representative shall not be liable to Sellers for any act done or omitted hereunder as Seller Representative while acting in good faith and in the exercise of reasonable judgment. Sellers (except for Seller Ancillary AgreementsRepresentative, if a Seller) shall jointly and severally indemnify Seller Representative and hold Seller Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of Seller Representative and arising out of or in connection with the acceptance or administration of Seller Representative’s duties hereunder, including the initiation reasonable fees and expenses of any legal counsel retained by Seller Representative (“Seller Representative Expenses”), provided that the Seller Representative shall first utilize the Expense Fund in connection with any of the foregoing. In no event will Seller Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Indemnifying Parties set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to Seller Representative under this Section 11.19. The foregoing indemnities will survive the Closing, the resignation or removal of Seller Representative. Following the resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising all indemnification claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations made under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims satisfaction of all such indemnification under Article 8 and resolvingclaims, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation the right to act on behalf of recover Seller Representative Expenses from the SellersExpense Fund and, except as expressly provided hereinafter the Expense Fund is fully depleted, from the funds then remaining in the Escrow AgreementAmount, in the Seller Ancillary Agreements if any, prior to any distribution to Sellers, and in prior to any such distribution, shall deliver to Buyer a certificate setting forth the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure LetterExpenses actually incurred. A decision, act, consent or instruction of Seller Representative Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Indemnifying Parties and shall be final, conclusive and binding upon Seller; and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Buyer may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Indemnifying Parties. Buyer is hereby relieved from any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the deathacts done by them in accordance with such decision, incompetenceact, bankruptcy consent or liquidation instruction of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably appoints The Seller Representative to act is hereby constituted and appointed as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do for and on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement Companies and the Seller Ancillary Agreements; (iii) administering this Agreement and Stockholders. Without limiting the Seller Ancillary Agreements, including the initiation and resolution generality of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation has full power and authority, on behalf of each Company and Stockholder and its or his successors and assigns, to act (i) interpret the terms and provisions of this Agreement and the Related Documents, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Related Documents, (iii) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of such claims, assume the defense of claims, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing, (v) make any payment or pay any expenses under or in connection with this Agreement and any Related Document, (vi) give and receive notices and communications, (vii) authorize delivery to any Buyer Indemnitee of the Escrow Funds or any portion thereof, (viii) object to such deliveries, (ix) distribute the Escrow Funds and any earnings and proceeds thereon, and (x) take all actions necessary or appropriate in the judgment of the Seller Representative on behalf of the Sellers, except as expressly provided herein, Companies and the Stockholders in connection with this Agreement and the Escrow Agreement, including, without limitation, entering into amendments hereof and thereof.
(b) The Seller Representative shall not be liable to the Companies or Stockholders for any act done or omitted under this Agreement as Seller Representative while acting in good faith, and any act taken or omitted to be taken pursuant to the Seller Ancillary Agreements advice of counsel shall be conclusive evidence of such good faith.
(c) From and in after the Closing Date, Buyer and the Escrow Agent shall be entitled to deal exclusively with the Seller Representative Engagement Agreement, on all matters pertaining to the rights and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or Companies and the Company Disclosure LetterStockholders under this Agreement and the Escrow Agreement. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement constitutes a decision of all the Companies and the transactions contemplated hereby and therebyStockholders. Such decision, and shall be act, consent or instruction is final, binding and conclusive upon each Stockholder and Seller and Buyer and the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Escrow Agent may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination all purposes of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with Notices or communications to or from the Seller Representative shall constitute notice to provide direction or from each of the Companies and the Stockholders for all purposes of this Agreement and the Escrow Agreement. If the Seller Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities hereunder, then the Stockholders (including the Seller Representative) by majority vote shall promptly appoint a successor to the Seller Representative. In addition, the Companies and the Stockholders (including the Seller Representative) may replace the Seller Representative from time to time pursuant to a written consent executed by both Stockholders. Any successor to the Seller Representative in connection with its services shall become the “Seller Representative” for all purposes under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements effective upon written notice given to Buyer and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsparties hereto.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Unique Fabricating, Inc.)
Seller Representative. (a) Each Seller Guarantor designates Xxxxxx X. Xxxx (the “Seller Representative”) as his or her representative for purposes of this Agreement. The Sellers and their respective successors shall be bound by any and all actions taken by the Seller Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Seller Representative is unable or unwilling to serve or shall resign, a successor Seller Representative shall be selected by the Sellers holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing. A Seller Representative may not resign, except upon 30 days prior written notice to Buyer. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Seller Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Seller Representative, the successor shall be deemed to be the executor or other representative of such Seller Representative’s estate) and Buyer shall be notified promptly of such appointment by the successor Seller Representative. No resignation, nor any other replacement, of any Seller Representative is effective against the Buyer until selection of a successor and prior written notice to the Buyer of such selection (such consent not to be unreasonably withheld). Each successor Seller Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Seller Representative.
(b) The Buyer shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Seller Representative on behalf of the Sellers. All communications or writings to be sent to the Sellers pursuant to this Agreement may be addressed to the Seller Representative and any communication or writing so sent shall be deemed notice to all of the Sellers hereunder. The Sellers consent and agree that the Seller Representative is authorized to accept deliveries, including any notice, on behalf of each Seller irrevocably appoints pursuant hereto.
(c) The Seller Representative to act as such Seller Guarantor’s is hereby appointed and such Seller’s exclusive agent and constituted the true and lawful attorney-in-fact of each Seller, with full power of substitution in such Seller’s name and on such Seller’s behalf to do on behalf act according to the terms of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and other documents contemplated hereby in the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions absolute discretion of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary AgreementsRepresentative; and (ix) performing in general to do all actsthings and to perform all acts including, as without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsother documents contemplated hereby, including without limitation Article IX hereof. Notwithstanding This power of attorney and all authority hereby conferred is granted subject to the foregoing, the Seller Representative shall have no obligation to act on behalf interest of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements other Sellers hereunder and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations consideration of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors mutual covenants and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyagreements made herein, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall not be binding on any successor thereto, and shall survive the delivery of an assignment terminated by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act any Seller, by operation of a majority of the Seller Representatives which will be binding upon the Seller Guarantorslaw, the Sellers and the Seller Representatives, and upon whether by such act Seller’s death or disability or by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsevent.
(d) The Seller Representative shall be entitled to: (i) rely upon hereby acknowledges and agrees to serve as the Payment Schedule, (ii) rely upon any signature believed by it Seller Representative in accordance with the applicable terms hereof and to be genuinebound by such terms. At Buyer’s request, the Seller Representative shall enter into an agreement in form and (iii) substance reasonably assume that satisfactory to Buyer and the Seller Representative in which the Seller Representative acknowledges and agrees to serve as a signatory has proper authorization Seller Representative and to sign on behalf of be bound by the applicable Seller or other partyterms of this Agreement.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor hereby authorizes, directs and each Seller irrevocably appoints Seller Representative Katsujin Xxxxx Xxxx to act as such Seller Guarantor’s sole and such Seller’s exclusive agent and true and lawful agent, attorney-in-fact with full power of substitution to do on behalf and representative of such Seller Guarantor (the "SELLER REPRESENTATIVE"), and such authorized and directs the Seller Representative to (i) take any and all thingsactions (including without limitation executing and delivering any documents, including executing incurring any costs and expenses for the account of such Seller and making any and all documents, determinations) which may be necessary, convenient required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted by this Agreement to be made hereunder; taken by such Seller or Sellers, (ii) receiving notices exercise such other rights, power and communications pursuant to this Agreement authority as are authorized, delegated and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group hereunder in connection with the transactions contemplated hereby, (iii) exercise such rights, power and authority as are coupled with an interest incidental to the foregoing, and will (iv) give and receive any notices, consents, waivers or other communications required or permitted to be irrevocable given under the terms of this Agreement. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by any the Seller Guarantor or any Seller in any manner or for any reason and survive the deathRepresentative consistent therewith, incompetence, bankruptcy or liquidation of any Seller and shall be absolutely and irrevocably binding on any successor theretoeach Seller, as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Seller's individual capacity. The Seller Representative hereby acknowledges and shall survive accepts the delivery of an assignment by any foregoing authorization and appointment and agrees to serve as the Seller of Representative in accordance with the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountAgreement.
(b) If The Seller Representative shall serve as Seller Representative until his resignation, removal from office, incapacity or death; provided, however, that the Seller Representative shall not have the right to resign without (A) prior written notice to Sellers and (B) picking a successor reasonably satisfactory to Purchaser to serve until a successor thereto is elected by Sellers. The Seller Representative may be removed at any time there is more than one Person appointed and a successor representative, reasonably satisfactory to serve as the Seller RepresentativePurchaser, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will may be binding upon the Seller Guarantorsappointed, the pursuant to written action by Sellers and the Seller Representativeswho, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror date of removal, hold at least one Share. No appointment of a successor shall be effective unless such successor agrees in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made be bound by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination terms of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read shall be permitted to retain counsel, consultants and understands this other advisors at its own expense and shall promptly notify Purchaser after retaining any such person.
(d) Notwithstanding any notice received by Purchaser to the contrary (except any notice for the appointment of a successor Seller Representative approved by Purchaser in accordance with Section 13.189.7(b) above), Purchaser (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to Sellers with respect to, and xxxxxx accepts such appointment. Certain shall be indemnified by Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with from and against all liability arising out of, actions, decisions and determinations of the Seller Representative and (ii) shall be entitled to provide direction to assume that all actions, decisions and determinations of the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement are fully authorized by Sellers.
(such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). e) The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required liable to expend or risk its own funds or otherwise incur any financial liability in Sellers for the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement act or the transactions contemplated hereby failure to act so long as he acted or thereby. Furthermore, the Seller Representative shall not be required failed to take any action unless the Seller Representative has been provided with funds, security or indemnities which, act in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative good faith in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature what he reasonably believed by it to be genuine, the scope of his authority and (iii) for a purpose which he reasonably assume that a signatory has proper authorization believed to sign on behalf be in the best interests of the applicable Seller or other partySellers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Yan Rick)
Seller Representative. (a) Each By executing this Agreement, each of the Seller Guarantor Parties shall have irrevocably authorized and each Seller irrevocably appoints appointed Seller Representative to act as such Seller Guarantor’s its representative and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do act on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant Person with respect to this Agreement and the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Seller Ancillary Agreements; (iii) administering Representative pursuant to this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Purchaser of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Purchaser pursuant to Section 2.04(f) or from the R&W Retention Fund or the Indemnification Escrow Fund in satisfaction of claims for indemnification made by Purchaser pursuant to Article IX;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.04(f);
(iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Purchaser pursuant to Article IX (subject to the limitations set forth therein);
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article IX (subject to the limitations set forth therein);
(vi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Escrow Agreement);
(vii) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Escrow Agreement);
(viii) engage, employ or appoint any agents or Representatives to assist Seller Representative Engagement Agreement in complying with its duties and obligations; and
(ix) take all actions necessary or appropriate in the good faith judgment of Seller Ancillary Agreements. Notwithstanding Representative for the accomplishment of the foregoing, the . Purchaser shall be entitled to deal exclusively with Seller Representative on all matters relating to this Agreement (including Article IX) and shall have no obligation be entitled to act rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the any Seller Ancillary Agreements and in the Party by Seller Representative Engagement AgreementRepresentative, and for purposes on any other action taken or purported to be taken on behalf of clarityany Seller Party by Seller Representative, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit as being fully binding upon such Person. Notices or the Company Disclosure Letter. A decision, act, consent communications to or instruction of from Seller Representative shall constitute notice to or from each Seller Party. Any decision or action by Seller Representative hereunder, including any agreement between Seller Representative and Purchaser relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision for or action of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Parties and shall be final, binding and conclusive upon the each such Person. No Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives Party shall have any liability the right to any Seller Guarantor object to, dissent from, protest or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to otherwise contest the Seller Guarantors and the Sellerssame. The powersprovisions of this Section, immunities including the power of attorney granted hereby, are independent and rights to indemnification granted to the Seller Representative Group severable, are irrevocable and coupled with an interest and will shall not be irrevocable terminated by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation act of any one or more Seller and shall be binding on any successor theretoParties, and shall survive the delivery or by operation of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountLaw.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the members of the Seller Group according to each member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Seller Representative at any time by written notice delivered to resign or be removed without the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Majority Holders having first appointed a new Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers who shall assume such duties immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive upon the resignation or removal of Seller Representative. In the event of the death, incapacity, resignation or removal of Seller Representative, a new Seller Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Seller Representative shall be sent to Purchaser, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Purchaser; provided, that until such notice is received, Purchaser shall be entitled to rely on the decisions and actions of the prior Seller Representative as described in Section 11.01(a) above.
(c) Seller Representative shall not be liable to the Seller Parties for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Seller Representative or shall be conclusive evidence of good faith). The Seller Group shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Seller Representative from and against, compensate it for, reimburse it for and pay any member and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of the Advisory Group and the Closing and/or any termination of in connection with its activities as Seller Representative under this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement Agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory GroupLosses”). The Seller , in each case as such Representative and its membersLoss is suffered or incurred; provided, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, reimburse the Seller Group the amount of such indemnified Representative shall not be required Loss attributable to take any action unless the Seller such gross negligence, fraud, intentional misconduct or bad faith. The Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative Losses shall be entitled tosatisfied: (i) rely upon from the Payment Schedule, Seller Representative Expense Fund; and (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf the extent the amount of the applicable Representative Losses exceeds amounts available to Seller Representative under (i), from the Seller Group, severally and not jointly (in accordance with their Pro Rata Shares). As soon as practicable after the date on which the final obligation of Seller Representative under this Agreement and the Escrow Agreement have been discharged or such other partydate as Seller Representative deems appropriate, the Escrow Agent shall pay any amounts remaining in the Seller Representative Expense Fund to the Seller Parties in accordance with their Pro Rata Shares, as set forth in the Escrow Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Northwest Pipe Co)
Seller Representative. (a) Each Seller Guarantor and By voting in favor of the Merger or participating in the conversion of Company Capital Stock, each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability deemed to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date hereby irrevocably appoint James F. Watson to act as the Seller Representative for all purposes uxxxx Xxxxxxx 0.8 and notify Acquiror in writing Section 7 of such determination. Following this Agreement and the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writingEscrow Agreement including, without limitation, the full power and authority on each Seller's behalf to: (i) receive notices or service of process, (ii) negotiate, determine, compromise, settle and take any other action permitted or called for by Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities under Section 6.8 and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination Section 7 of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment(iii) to execute and deliver any amendment or waiver to this Agreement (to the extent permitted by the proviso in Section 10.2) and the Escrow Agreement in connection therewith. Certain Sellers have entered into Such agency and proxy are coupled with an engagement agreement (interest, and are therefore irrevocable without the “Seller Representative Engagement Agreement”) with consent of the Seller Representative to provide direction to and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller. All decisions and actions by the Seller Representative in connection with its services under taken pursuant to this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Section 10.14 shall be binding upon all Sellers, including their individual representativesand no Seller shall have the right to object, collectively hereinafter referred to as dissent, protest or otherwise contest the “Advisory Group”)same. The Seller Representative shall have no duties or obligations hereunder except those specifically set forth herein and its members, managers, directors, officers, contractors, agents in the Escrow Agreement and employees such duties and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission obligations shall be determined solely by the Seller Representative in connection with the Seller Representative’s services pursuant to express provisions of this Agreement, Agreement and the Escrow Agreement, the . Each Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend agrees to indemnify and hold harmless the Seller Representative Group from and its respective successors, assigns, Affiliates, stockholders, officers, managers, directors, employees and agents (collectively, "Seller Representative Indemnitees") against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including reasonable attorneys' fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or and amounts paid in settlement (collectively, the “incurred by a Seller Representative Expenses”) arising out Indemnitee in connection with any action, suit or proceeding to which such Seller Representative Indemnitee is made a party by reason of the fact it is or was acting as, on behalf of or in connection with the with, a Seller Representative under this Agreement or its relationship to a Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, ; if not paid directly to the Seller Representative Engagement Agreement by the Sellers, such expenses, judgments, fines and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses amounts may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that by the Seller Representative shall from the Escrow Amount, and such recovery will be made from the Sellers according to their respective Allocable Portions; provided that, to the extent that such amounts recovered by the Seller Representative from the Escrow Amount are not be required used by the Seller Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or provide indemnification to a Buyer Indemnitee for Losses pursuant to this Agreement, Section 7.2 (subject to the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermorelimitations on such indemnification set forth in Section 7.4), the Seller Representative shall not be required (if and upon subsequently receiving the direct payment of such amounts from Sellers), or otherwise shall cause the Sellers to take (and the Sellers shall), promptly refund such amounts to the Escrow Amount. No Seller Representative Indemnitee nor any action unless agent employed by it shall incur any liability to any Seller relating to the performance of its duties hereunder except for actions or omissions constituting fraud or bad faith. Without prejudice to the foregoing, no Seller Representative Indemnitee shall have liability in respect of any action, claim or proceeding brought against the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect Indemnitee by any Seller if the Seller Representative against the costs, expenses and liabilities which may be incurred by took or omitted taking any action in good faith.
(b) The individual serving as the Seller Representative may be replaced from time to time by the holders of a majority in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf interest of the applicable Seller or other partyEscrow Amount then on deposit with the Escrow Agent upon not less than ten days prior written notice to Buyer and the Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Qlogic Corp)
Seller Representative. (a) Each Seller Guarantor By the adoption of the Merger or execution of a Incentive Unit Bonus and Release Agreement, as applicable, and by receiving the benefits thereof, including any consideration payable hereunder or thereunder, each Seller irrevocably appoints Merger Participant shall be deemed to have designated, and hereby designates, the Seller Representative as of the Closing for all purposes in connection with this Agreement and the agreements ancillary hereto, to act as such Seller Guarantor’s execute any and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do all instruments, certificates or other documents on behalf of such Seller Guarantor the Merger Participants, and such Seller to do any and all thingsother acts or things on behalf of the Merger Participants, including executing any and all documentswhich the Seller Representative may deem necessary or advisable, or which may be necessaryrequired pursuant to this Agreement, convenient the Escrow Agreement, Paying Agent Agreement or appropriate to facilitate otherwise, in connection with the consummation of the Stock Purchasetransactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) receiving execute the Escrow Agreement and disbursing payments to be made hereunder; Paying Agent Agreement on behalf of the Merger Participants, (ii) receiving notices and communications act for the Merger Participants with respect to any adjustments pursuant to this Agreement and the Seller Ancillary AgreementsAggregate Closing Date Consideration pursuant to Section 2.8; (iii) administering give and receive notices and communications to or from Parent and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, the Paying Agent Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the Seller Ancillary Agreementsextent that this Agreement, including the initiation and resolution of Escrow Agreement or the Paying Agent Agreement expressly contemplates that any disputes such notice or claims; communication shall be given or received by the Merger Participants, individually), (iv) making determinations to settle agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, any dispute between Parent and the Merger Participants, in each case relating to this Agreement, the Escrow Agreement or the Paying Agent Agreement, and (v) take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing. The Seller Representative shall have authority and power to act on behalf of the Merger Participants with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingdisposition, settling settlement or compromising other handling of all claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of under this Agreement, waivers of conditions and obligations under this the Escrow Agreement and the Seller Ancillary Agreements; (vii) asserting claims for Paying Agent Agreement and all rights or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers obligations arising under this Agreement, the Escrow Agreement and the Seller Ancillary Agreements; Paying Agent Agreement. The Merger Participants shall be bound by all actions taken and (ix) performing all acts, as contemplated by or deemed advisable documents executed by the Seller Representative in connection with this Agreement, the Escrow Agreement and the Paying Agent Agreement, and Parent shall be entitled to rely on any action, consent, instruction or decision of the Seller Representative Engagement Agreement and the Seller Ancillary Agreementsas being actions, consents, instructions or decisions of each Merger Participant. Notwithstanding the foregoing, Notices or communications to or from the Seller Representative shall have no obligation constitute notice to act on behalf of or from the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Merger Participants. The Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in may resign at any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amounttime.
(b) If at The Seller Representative will incur no liability to the Merger Participants in connection with its services pursuant to this Agreement and any time there related agreements except to the extent resulting from its gross negligence or willful misconduct. The Seller Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Merger Participants shall indemnify the Seller Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is more than one Person appointed suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to serve as have been caused by the gross negligence or willful misconduct of the Seller Representative, any act of the Seller Representative will require reimburse the act Merger Participants the amount of a majority of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Seller Representatives which will be binding upon Representative from (i) the funds in the Seller GuarantorsRepresentative Expense Fund and (ii) any other funds that become payable to the Merger Participants under this Agreement at such time as such amounts would otherwise be distributable to the Merger Participants; provided, that while the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign be paid from the aforementioned sources of funds, this does not relieve the Merger Participants from their obligation to promptly pay such Representative Losses as a they are suffered or incurred. In no event will the Seller Representative at be required to advance its own funds on behalf of the Merger Participants or otherwise. Notwithstanding anything in this Agreement to the contrary, any time by written notice delivered restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Merger Participants set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Datehereunder. The immunities and rights to indemnification shall foregoing indemnities will survive the Closing, the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Merger Agreement (ModivCare Inc)
Seller Representative. (a) Each Seller Guarantor and each Seller hereby irrevocably appoints LBSF (“Seller Representative to act Representative”) as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful representative, attorney-in-fact and agent, with full power of substitution to do act in the name, place and stead of such Seller with respect to the transfer of such Seller’s Shares to the Company in accordance with the terms and provisions of this Agreement and to act on behalf of such Seller Guarantor in any amendment of or litigation or arbitration involving this Agreement and or the Indemnity Escrow Agreement to do or refrain from doing all such further acts and things, and to execute all such documents, as such Seller any and all things, including executing any and all documents, which may be necessary, convenient Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement and the Indemnity Escrow Agreement, including, without limitation, the power:
(i) to facilitate take all action necessary or desirable in connection with the waiver of any condition to the obligations of Sellers to consummate the transactions contemplated by this Agreement or the Indemnity Escrow Agreement;
(ii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the consummation of the Stock Purchase, including: transactions contemplated by this Agreement or the Indemnity Escrow Agreement (iit being understood that such Seller shall execute and deliver any such documents which Seller Representative agrees to execute);
(iii) receiving to terminate this Agreement if Sellers are entitled to do so;
(iv) to give and disbursing payments to be made hereunder; (ii) receiving receive all notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes be given or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) received under this Agreement or the Indemnity Escrow Agreement and to receive service of process in connection with the any claims under this Agreement or the Indemnity Escrow Agreement, including service of process in connection with arbitration; and
(v) to take all actions which under this Agreement or the Indemnity Escrow Agreement may be taken by Sellers and to do or refrain from doing any further act or deed on behalf of Sellers which Seller Ancillary Agreement will be considered a payment by Acquiror Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountcould do if personally present.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require not be liable for any act taken or omitted by it as permitted under this Agreement or the act of a majority of the Seller Representatives which will be binding upon the Seller GuarantorsIndemnity Escrow Agreement, the Sellers and the Seller Representatives, and upon except if such act is taken or omitted in bad faith or by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representativeswillful misconduct. Any Seller Representative may resign as a Seller Representative at will also be fully protected in relying upon any time by written notice delivered notice, demand, certificate or document that it in good faith believes to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementbe genuine (including facsimiles thereof).
(c) The Sellers agree, severally but not jointly, to indemnify Seller Representative acknowledges that it has read and understands this Section 13.18for, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “to hold Seller Representative Engagement Agreement”) with harmless against, any loss, liability or expense incurred without willful misconduct or bad faith on the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member part of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution carrying out it duties under this Agreement and performance of this Agreement, the Indemnity Escrow Agreement, the Seller Representative Engagement Agreement including costs and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution expenses of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the successfully defending Seller Representative against any claim of liability with respect thereto. Seller Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the costsopinion of such counsel. If LBSF becomes unable to serve as Seller Xxxxxxxxxxxxxx, expenses and liabilities which XX0, or such other Person or Persons as may be incurred designated by the a majority of Sellers, shall succeed as Seller Representative in performing such actionsRepresentative.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Note and Equity Purchase Agreement
Seller Representative. The Sellers hereby agree that:
(a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act is irrevocably constituted and appointed as Seller Representative, agent, proxy and attorney in fact (coupled with an interest) for all such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with Persons for all purposes under this Agreement including the full power and authority on each such Person’s behalf: (i) to consummate the transactions contemplated under this Agreement and the other Transaction Documents, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other Transaction Documents, including, for the avoidance of substitution doubt, the Adjustment Amount and claims for indemnification under Article 10 (except for indemnification claims against a particular Seller under Section 10.2 and not Sellers generally), (iii) to do receive and disburse to, or cause to be received or disbursed to, any Seller any funds received on behalf of such Seller Guarantor under this Agreement (including, for the avoidance of doubt, the Seller Representative Fund, any portion of the Purchase Price, and such any cash amounts received on behalf of the Deferred Vesting Recipients) or otherwise, (iv) to withhold any amounts received on behalf of any Seller pursuant to this Agreement (including, for the avoidance of doubt, the Seller Representative Fund, any portion of the Purchase Price and any cash amounts received on behalf of the Deferred Vesting Recipients) and make disbursements therefrom to satisfy (on behalf of the Sellers) any and all thingsobligations or Liabilities of any Seller or Seller Representative in the performance of any of their commitments hereunder, including executing any and all documentsincluding, which may be necessaryfor the avoidance of doubt, convenient or appropriate to facilitate the consummation satisfaction of payment obligations on behalf of the Stock PurchaseSellers in connection with the Adjustment Amount or the indemnification of the Sellers under Article 10 (except in respect of indemnification claims against a particular Seller under Section 10.2 and not all Sellers generally, including: for which Seller Representative may only withhold amounts with respect to such particular Seller), (iv) receiving to execute and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant deliver any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of any Seller) and (vi) to take all other actions to be taken by or on behalf of any Seller Ancillary Agreements; (iii) administering in connection with this Agreement and the other Transaction Documents. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Seller Ancillary AgreementsRepresentative and shall survive the death, including incapacity, bankruptcy, dissolution or liquidation of each Seller. All decisions and actions by Seller Representative shall be binding upon each Seller, and no Seller shall have the initiation right to object, dissent, protest or otherwise contest the same. No Buyer Indemnified Party shall be liable to any Seller for any actions taken or omitted by them in reliance upon any instructions, notice or other instruments delivered by Seller Representative and resolution except in respect of any disputes or claims; (iv) making determinations indemnification against a particular Seller under Section 10.2 and not Sellers generally, the Buyer Indemnified Parties shall be entitled to settle any dispute deal exclusively with Seller Representative with respect to disputes arising hereunder. Seller Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the purchase price adjustments contemplated by Section 2.3(b); express provisions of this Agreement. Seller Representative shall provide each Seller that held at least 300,000 Series A Preferred Units or 300,000 Class A Units as of immediately prior to the Closing with copies of (vx) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers Buyer’s proposed calculations delivered pursuant to Article 12; (viSection 2.6(a) agreeing to amendments of this Agreement, waivers and any material written notices or counterproposals thereto delivered by the Seller Representative pursuant to the terms of conditions this Agreement; (y) Buyer’s proposed calculations delivered pursuant to Section 2.8(c)(i) of this Agreement, and obligations under any material written notices or counterproposals thereto delivered by the Seller Representative pursuant to the terms of this Agreement and (z) material formal written claims for indemnification by any Buyer Indemnified Parties under Section 10.1 of the Purchase Agreement, and any material written notices or responses thereto delivered by the Seller Ancillary AgreementsRepresentative pursuant to the terms of this Agreement; provided, that the foregoing obligations of Seller Representative shall not create any additional or independent obligation on Buyer pursuant to this Agreement.
(viib) asserting claims for Seller Representative shall be indemnified, held harmless and reimbursed by each Seller on a several (and not joint) basis, in accordance with its respective Indemnification Pro Rata Share, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated incurred by or deemed advisable by the Seller Representative in connection with any claim, action, suit or Proceeding to which Seller Representative is made a party by reason of the fact that such Person is or was acting as Seller Representative pursuant to the terms of this AgreementAgreement (including, for the avoidance of doubt, the Escrow Agreement, satisfaction of payment obligations (on behalf of the Sellers) or the indemnification of Indemnified Persons under Article 10). Any and all amounts paid or incurred by Seller Representative Engagement in connection with any claim, action, suit or Proceeding to which Seller Representative or such other Person is made a party by reason of the fact that it is or was acting as Seller Representative pursuant to the terms of this Agreement are on behalf of the Sellers (and not, for the avoidance of doubt, on behalf of Seller Ancillary AgreementsRepresentative in any other capacity).
(c) Seller Representative shall not incur any Liability to any Seller by virtue of the failure or refusal of Seller Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf Liability in respect of any action, claim or Proceeding brought against any such Person by any Seller, regardless of the Sellerslegal theory under which such Liability or obligation may be sought to be imposed, except as expressly provided hereinwhether sounding in contract or tort, or whether at Law or in the Escrow Agreementequity, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreementor otherwise, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent Person took or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to omitted taking any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsgood faith.
(d) The If Seller Representative shall pays or causes to be entitled to: paid any amounts (ion behalf of any Seller) rely upon in connection with any obligation or Liability of a Seller in connection with the Payment Scheduletransactions contemplated hereby, including, for the avoidance of doubt, the Adjustment Amount or the indemnification of Indemnified Persons under Article 10 (ii) rely upon except in respect of indemnification against a particular Seller under Section 10.2 and not Sellers generally, any signature believed such payments and the reasonable expenses of Seller Representative incurred in administering or defending the underlying dispute or claim may be reimbursed, when and as incurred, by the Sellers. Seller Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, the Seller Representative Fund and any or all other funds received or held by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Sellers (including, for the avoidance of doubt, any portion of the Purchase Price) to one or more Sellers at any time after the date hereof, which such distribution(s) of funds may be different (with respect to amount, timing, conditionality or otherwise) for each Seller. Upon full reimbursement of all expenses, costs, obligations or Liabilities incurred by Seller Representative in the performance of its duties hereunder, Seller Representative shall distribute, or other partycaused to be distributed, all remaining funds in the Seller Representative Fund or otherwise held by it on behalf of the Sellers to the Sellers.
(e) Notwithstanding anything to the contrary herein, Seller Representative and its Affiliates shall not be liable for any Loss to any Seller for any action taken or not taken by Seller Representative or for any act or omission taken or not taken in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by Buyer or, after the Closing, the Company.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (SOC Telemed, Inc.)
Seller Representative. (a) Each By the execution and delivery of this Agreement, Seller Guarantor and each Seller Member hereby irrevocably constitutes and appoints Seller Representative to act Xxxx Xxxxxx, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the “Seller Representative”) of Seller and each Member with full power powers of substitution to do on behalf act in the name, place and stead of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute each Member with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingperformance on behalf of Seller and each Member under terms and provisions of the Acquisition Documents including the Escrow Agreement as the same may be from time to time amended, settling and to do or compromising claims for indemnification asserted against refrain from doing all such further acts and things, and to execute all such documents, as the Seller Guarantors Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under the Acquisition Documents, including, without limitation, the power to:
(a) act for Seller and the Sellers pursuant Members with respect to Article 12; (vi) agreeing all matters referred to amendments of this Agreementin the Acquisition Documents, waivers of conditions including all adjustments to the Purchase Price and obligations under this Agreement all indemnification matters set forth herein and the Seller Ancillary Agreements; (vii) asserting claims for right to compromise or defending claims of indemnification under Article 8 and resolving, settling or compromising settle any such claimclaims on behalf of Seller and the Members;
(b) amend or waive any provision of the Acquisition Documents (including any condition to Closing);
(c) employ and obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Seller Representative and rely on their advice and counsel;
(d) incur any expenses, liquidate and withhold assets received on behalf of Seller and the Members prior to their distribution to the Members to the extent of any amount which the Member Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(e) receive all notices, communications and deliveries hereunder on behalf of Seller and the Members under the Acquisition Documents; and
(viiif) taking do or refrain from doing any further act or deed on behalf of Seller and the Members which the Seller Representative deems necessary or appropriate, in his or her sole discretion, relating to the subject matter of the Acquisition Documents as fully and completely as Seller or any of the Members could do if personally present and acting and as though any reference to Seller or any of the Members in the Acquisition Documents were a reference to the Seller Representative. The appointment of the Seller 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 Seller Guarantor Representative as the acts of Seller and each Member in all matters referred to in the Acquisition Documents. The Seller and each Member hereby ratifies and confirms all that the Seller Representative shall do or cause to be done by virtue of such Seller Representative’s appointment as Seller Representative of Seller and each Member. The Seller Representative shall act for Seller and each Member on all of the matters set forth in the Acquisition Documents in the manner the Seller Representative believes to be in the best interest of Seller and the Sellers under this Agreement and Members, but the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated Representative shall not be responsible to Seller or any Members for any loss or damage Seller or any Members may suffer by or deemed advisable reason of the performance by the Seller Representative in connection with this Agreementof such Seller Representative’s duties under the Acquisition Documents. The Seller Representative’s obligations hereunder are subject to the Written Consent of the Members of Seller, dated as of the Escrow Agreement, Effective Date which indemnification terms are incorporated herein by reference. The Seller and each Member hereby expressly acknowledges and agrees that the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of Seller and each Member notwithstanding any dispute or disagreement among Seller and/or any of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement AgreementMembers, and for purposes of clarity, there are no obligations of the Seller Representative in that any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative person shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to rely on any and all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission taken by the Seller Representative in connection with under the Acquisition Documents without liability to, or obligation to inquire of, Seller Representative’s services pursuant to this Agreement, or any of the Escrow Agreement, Members. If the Seller Representative Engagement Agreement resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Representative shall be the person which Seller and the Members appoint; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then Seller Ancillary Agreements, except in or any Member shall have the event right to petition a court of liability directly resulting from the competent jurisdiction for appointment of a successor Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend each Member does hereby agree to jointly and severally indemnify and hold harmless the Seller Representative Group harmless from and against any and all Damagesliability, lossesloss, claimscost, liabilitiesaction, feescause of action, damage, suits, debts, dues, sums of money, account reckonings, bills, covenants, contracts and agreements whatsoever in law or equity, or expense (including, without limitation, attorneys’ fees and costs, expenses (including fees, disbursements and costs ) reasonably incurred or suffered as a result of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out performance of or in connection with the such Seller Representative’s execution and performance of this Agreement, duties under the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsAcquisition Documents.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor and each Seller Mx. Xxxxxxxx is hereby irrevocably appoints Seller Representative to act appointed as such Seller Guarantor’s and such Seller’s exclusive representative, agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such for the Seller Guarantor and such Seller any and all thingseach Member, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving to give and disbursing payments receive notices and communications relating to be made hereunderthe transactions and other matters contemplated by this Agreement or the Seller Ancillary Documents, including those relating to adjustments to the Purchase Price and indemnification claims; (ii) receiving notices and communications pursuant to this Agreement make decisions on behalf of the Seller and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Members with respect to the purchase price adjustments transactions and other matters contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and or the Seller Ancillary Agreements; Documents, including regarding (viiA) asserting claims for or defending claims of adjustments to the Purchase Price, (B) indemnification under Article 8 and resolvingclaims, settling or compromising any such claim; (viiiC) taking any other actions of the Seller Guarantor and the Sellers under amendments to this Agreement and or the Seller Ancillary AgreementsDocuments and (D) the defense of third party suits that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such third party suits or claims by the Purchaser for indemnification; and (ixiii) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act take other actions on behalf of the Sellers, except Seller and the Members as expressly provided herein, in the Escrow Agreement, in contemplated by this Agreement or the Seller Ancillary Agreements and in Documents, including the exercise of all rights granted to the Seller Representative Engagement Agreementand the Members under this Agreement or the Seller Ancillary Documents.
(b) The Seller and each Member agrees that (i) the provisions of this Section 12.1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies the Seller or any Member may have in connection with the transactions contemplated by this Agreement or the Seller Ancillary Documents, (ii) the remedy at law for any breach of the provisions of this Section 12.1 would be inadequate, and for purposes (iii) the provisions of clarity, there are no obligations this Section 12.1 shall be binding upon the successors and assigns of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. and each Member.
(c) A decision, act, consent or instruction of the Seller Representative relating to this Agreement or the Seller Ancillary Documents shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyall Members, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writingthe Members, and Acquiror, its Affiliates and Representatives the Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amountevery Member.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Winsonic Digital Media Group LTD)
Seller Representative. (a) Each Seller Guarantor and 9.14.1. Subject to the requirements of Section 9.14.2 below, by approval of this Agreement in accordance with the laws of the State of Delaware, each Seller hereby irrevocably appoints Seller Representative to act Yuz, on an exclusive basis, as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact fact, representative, agent and proxy, with full power of substitution or re-substitution, to do act solely and exclusively, on behalf of such Seller Guarantor and such Seller with respect to any and all thingsmatters relating to this Agreement and the Escrow Agreement, including executing (i) that the Parent Stock subject to the Escrow Stock Amount initially may be titled in the name of the Stockholder Representative on behalf of the Sellers until released from the Escrow Account, at which time the Parent Stock will be re-titled in the name of the Sellers in accordance with the Allocation Schedule, (ii) to perform covenants, exercise rights and satisfy obligations of the Sellers herein, to communicate to, and receive all communications and notices from the Buyer, (iii) to resolve with the Buyer and the Independent Referee the Closing Statement and the calculation of any adjustment to the Purchase Price related thereto, (iv) to authorize deliveries to the Buyer Indemnified Parties of cash or other property from the Escrow Account, or to object to related claims in accordance with the Escrow Agreement, (v) to consent or agree to, negotiate, enter into settlements and compromises of, and comply with Governmental Orders with respect to any indemnification claims or disputes under this Agreement, (vi) to authorize the release of the Seller Representative Fund Amount or otherwise control the Seller Representative Fund Amount, and (vii) to do each and every act, implement any decision and exercise any and all documentsrights which the Sellers are permitted or required to do or exercise under this Agreement, except that (x) the Seller Representative may not receive any funds payable hereunder on behalf of the Sellers, and if Seller Representative receives any such funds, it will promptly distribute those funds to the applicable Sellers in accordance with the Allocation Schedule and (y) any action by on or the party of the Seller Representative, including in respect of indemnification claims, disputes related to the release of escrow funds, or matters related to the Earn-Out, that might impact the proceeds payable to Siemens or otherwise relates to any liability of Siemens also requires the written consent of Siemens, which Siemens may be necessarygrant or withhold in its discretion. If Xxx or any successor or replacement of his as Seller Representative is ever unable and/or unwilling to act as a Seller Representative, convenient or appropriate to facilitate the consummation Persons holding a majority of the Stock Purchase, including: (i) receiving and disbursing payments Shares to be sold pursuant to this Agreement may select another representative or representatives to replace such Seller Representative(s) and such substituted representative shall be deemed to be such Seller Representative(s) for all purposes of this Agreement.
9.14.2. Subject to the approval requirements set forth in the proviso below, the Seller Representative is hereby authorized and empowered to exclusively act as the representative of the Sellers, and to take all action deemed by the consent of the Seller Representative on behalf of the Sellers required or permitted to be taken by the Seller Representative under this Agreement and/or the Escrow Agreement, including with respect to any claims (including the settlement thereof) made hereunderby the Buyer for indemnification pursuant to this Section 9; provided that, prior to taking any action on behalf of the Sellers (iiincluding in respect of the use of the Seller Representative Fund Amount) receiving notices (a “Proposed Action”), the Seller Representative must first submit the Proposed Action to Siemens, Xxxxxxx Xxx and communications Xxxxx Xxxxxx (each, a “Representative Committee Member” and collectively, the “Representative Committee”) for approval. A Proposed Action will be deemed approved by the Representative Committee and the Seller Representative may undertake such Proposed Action if a majority of the Representative Committee Members vote to approve the Proposed Action. For the avoidance of doubt, the Seller Representative may not undertake a Proposed Action if the Representative Committee does not approve such Proposed Action. Each Representative Committee Member may approve a Proposed Action in writing, including electronically via email, and meetings of the Representative Committee are not required. The Sellers shall be bound by all actions taken by the Seller Representative in its capacity as such. Each Seller acknowledges and agrees that the Seller Representative shall for all purposes be deemed the sole authorized agent of the Sellers until such time as the agency is terminated and no Seller shall have any right to act on its own behalf with respect to any of the foregoing matters. The Seller Representative shall promptly, and in any event within five (5) Business Days thereof, provide written notice to the Sellers of any action taken on behalf of the Sellers by the Seller Representative pursuant to the authority delegated to the Seller Representative under this Section 9.14. The Seller Representative shall at all times act in its capacity as Seller Representative in a manner that the Seller Representative believes to be in the best interest of the Sellers. The Sellers agree that the Buyer Indemnified Parties shall be entitled to rely exclusively upon all actions taken or omitted to be taken by the Seller Representative pursuant to this Agreement and any of the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect foregoing matters. Notwithstanding anything contained herein to the purchase price adjustments contemplated by Section 2.3(b); (v) resolvingcontrary, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of shall remain bound by their obligations under this Agreement, waivers including under Sections 8 and 9.
9.14.3. Neither the Seller Representative (nor any of conditions and obligations his Representatives, if applicable) nor the Representative Committee Members shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement and or the Seller Ancillary Agreements; (vii) asserting claims for Escrow Agreement, except in the case of his gross negligence, bad faith, fraud or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions willful misconduct. Each of the Seller Guarantor Representative and the Sellers under this Agreement Representative Committee Members, respectively, may consult with legal counsel, independent public accountants and other experts selected by them and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the Seller Ancillary Agreements; and (ix) performing all actsadvice of counsel, as contemplated by accountants or deemed advisable by experts. Neither the Seller Representative nor any Representative Committee Member, respectively, shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in connection with this Agreement, Agreement or the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary AgreementsRepresentative Committee Members, respectively, shall not be required to exercise any discretion or take any action. Notwithstanding Each Seller, severally in accordance with its pro rata share of the foregoingPurchase Price, shall indemnify and hold harmless and reimburse the Seller Representative shall have no obligation to act on behalf of and the SellersRepresentative Committee Members from and against any and all Losses incurred by the Seller Representative and each Representative Committee Member, except as expressly provided hereinrespectively, in each case solely in his capacity as such, arising out of or resulting from any action taken or omitted to be taken by the Seller Representative under this Agreement or the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes other than such Losses arising out of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraudgross negligence, gross negligence bad faith, fraud or willful misconduct.
9.14.4. The Seller Guarantor and Sellers At the Closing, Xxxxx will indemnify, defend and hold harmless deliver the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with Fund Amount to a bank account designated by the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, which will be controlled by the Seller Representative Engagement Agreement and used solely to pay the Seller Ancillary Agreementscosts and expenses, in each caseif any, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsthe performance of his obligations as the Seller Representative.
(d) The 9.14.5. In all matters relating to this Article 9 and subject to the approval requirements of the Representative Committee, the Seller Representative shall be the only party entitled to: (i) rely upon to assert the Payment Schedule, (ii) rely upon any signature believed by it to be genuinerights of the Sellers, and (iii) reasonably assume that a signatory has proper authorization the Seller Representative shall be permitted to sign on behalf perform all of the applicable obligations of the Sellers hereunder, provided that the Sellers shall remain bound by their obligations under this Agreement including any payment obligations. Buyer shall be entitled to rely on all statements, representations, and decisions of the Seller or other partyRepresentative.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor By the execution and delivery of this Agreement, each Seller of the Sellers hereby irrevocably constitutes and appoints Seller Representative to act Harbour Group IV Management Co., L.L.C., a Delaware limited liability company and general partner of the Partnership, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful agent and attorney-in-fact (the "Seller Representative") of the Sellers with full power of substitution to do act in the name, place and stead of the Sellers with respect to this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby as the Seller Representative may deem appropriate, including, without limitation, the transfer of the Stock and the Options owned by the Sellers to the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the Sellers in any litigation or arbitration involving this Agreement or the Escrow Agreement, do or refrain from doing all such Seller Guarantor further acts and such Seller any and all things, including executing any and execute all documents, which may be necessary, convenient such documents as the Seller Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including the power:
(i) to facilitate act for the Sellers with regard to matters pertaining to the determination of the Closing Adjustment and pertaining to the indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Sellers and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Seller Representative deems necessary or appropriate in connection with the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to transactions contemplated by this Agreement and the Seller Ancillary Agreements; Escrow Agreement;
(iii) administering to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price or any amounts distributed under the Escrow Agreement;
(iv) to do or refrain from doing any further act or deed on behalf of the Sellers that the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Sellers could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement or the Escrow Agreement. The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Seller Representative in all matters referred to herein. All notices required to be made or delivered by the Buyer to the Sellers shall be made to the Seller Representative for the benefit of the Sellers and shall discharge in full all notice requirements of the Buyer to the Sellers with respect thereto. The Sellers hereby confirm all that the Seller Representative shall do or cause to be done by virtue of its appointment as the Seller Representative of the Sellers. The Seller Representative shall act for the Sellers on all of the matters set forth in this Agreement and the Seller Ancillary Agreements, including Escrow Agreement in the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against manner the Seller Guarantors and Representative believes to be in the best interest of the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and consistent with the obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that but the Seller Representative shall not be required responsible to expend the Sellers for any loss or risk its own funds or otherwise incur any financial liability in damages the exercise or Sellers may suffer by the performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The of its duties under this Agreement or the Escrow Agreement, other than loss or damage arising from willful violation of the law by the Seller Representative of its duties under this Agreement or the Escrow Agreement. If any individual Sellers should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Seller Representative pursuant to this Section 9.8 shall be entitled to: (i) rely upon the Payment Schedulevalid as if such death or incapacity, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller termination or other partyevent had not occurred, regardless of whether or not the Seller Representative or the Buyer shall have received notice of such death, incapacity, termination or other event.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Interline Brands, Inc./De)
Seller Representative. (a) Each Seller Guarantor and each Seller irrevocably of the Equityholders hereby appoints Seller Representative to act Txxxxx Xxxxxxxx as such Seller Guarantor’s and such Seller’s exclusive its agent and true and lawful attorney-in-fact with full power of substitution to do fact, as the Seller Representative for and on behalf of the Equityholders to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims by Indemnified Parties for indemnification pursuant to this Agreement, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Parties against any Equityholders or by any such Seller Guarantor Equityholders against any Indemnified Parties or any dispute between any Indemnified Parties and any such Seller any Equityholders, in each case relating to this Agreement or the transactions contemplated hereby, and to take all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: other actions that are either (i) receiving and disbursing payments to be made hereunder; necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing or (ii) receiving notices and communications pursuant to this Agreement and specifically mandated by the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments terms of this Agreement. Such agency may be changed by the Equityholders from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, waivers of conditions and obligations under this Agreement and however, that the Seller Ancillary Agreements; (vii) asserting claims for or defending claims Representative may not be removed unless holders of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions a majority of the Seller Guarantor Shares immediately prior to the Closing agree to such removal and to the Sellers under this Agreement and identity of the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreementssubstituted agent. Notwithstanding the foregoing, a vacancy in the position of Seller Representative may be filled by the holders of a majority of the Seller immediately prior to the Closing. No bond shall be required of the Seller Representative, and the Seller Representative shall have no obligation not receive any compensation for its services. Notices or communications to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in or from the Seller Ancillary Agreements Representative shall constitute notice to or from the Equityholders
(b) The Seller Representative shall not be liable to the Equityholders for any act done or omitted hereunder as Seller Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties shall indemnify the Seller Representative Engagement Agreementand hold the Seller Representative harmless against any loss, and for purposes of clarity, there are no obligations liability or expense incurred without gross negligence or bad faith on the part of the Seller Representative and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties hereunder, including the reasonable fees and expenses of any ancillary agreement, schedule, exhibit or legal counsel retained by the Company Disclosure LetterSeller Representative. A decision, act, consent or instruction of the Seller Representative Representative, including an amendment, alteration or modification of this Agreement pursuant to Section 11.01, shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, Equityholders and shall be final, binding and conclusive upon the Seller Guarantors Equityholders; and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives Buyer may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have Equityholders. Buyer is hereby relieved from any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or person for any reason and survive the deathacts done by it in accordance with such decision, incompetenceact, bankruptcy consent or liquidation instruction of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cvent Inc)
Seller Representative. (a) Each Seller Guarantor By approving this Agreement and the transactions contemplated hereby, each Seller shall have irrevocably appoints authorized and appointed Seller Representative to act as such Seller GuarantorPerson’s representative and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do act on behalf of such Seller Guarantor Person with respect to this Agreement and such Seller the Adjustment Escrow Agreement and to take any and all things, including executing actions and make any and all documents, which may be necessary, convenient decisions required or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments permitted to be made hereunder; (ii) receiving notices and communications taken by Seller Representative pursuant to this Agreement and the Seller Ancillary Agreements; Adjustment Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Buyer of cash from the Adjustment Escrow Account pursuant to and in accordance with Section 2.5;
(iii) administering agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.5;
(iv) litigate, resolve, settle or compromise any claim for indemnification pursuant to Article VII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the Seller Ancillary Agreements, any Transaction Document (including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to Adjustment Escrow Agreement, but excluding the purchase price adjustments contemplated by Section 2.3(bLTIP); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; ;
(vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under make all elections or decisions contemplated by this Agreement and any Transaction Document (including the Seller Ancillary Agreements; Adjustment Escrow Agreement, but excluding the LTIP);
(vii) asserting claims for engage, employ or defending claims of indemnification under Article 8 appoint any agents or representatives (including attorneys, accountants and resolving, settling or compromising any such claimconsultants) to assist Seller Representative in complying with its duties and obligations; and
(viii) taking any other take all actions necessary or appropriate in the good faith judgment of Seller Representative for the accomplishment of the foregoing. Xxxxx and Buyer Parent shall be entitled to deal exclusively with Seller Guarantor and the Sellers under Representative on all matters relating to this Agreement (including Article VII) and the Seller Ancillary Agreements; and shall be entitled to rely conclusively (ixwithout further evidence of any kind whatsoever) performing all acts, as contemplated by on any document executed or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation purported to act be executed on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the any Seller Ancillary Agreements and in the by Seller Representative Engagement AgreementRepresentative, and for purposes on any other action taken or purported to be taken on behalf of clarityany Seller by Seller Representative, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit as being fully binding upon such Person. Notices or the Company Disclosure Letter. A decision, act, consent communications to or instruction of from Seller Representative shall constitute notice to or from each of the Sellers. Any decision or action by Seller Representative hereunder, including any agreement between Seller Representative and Buyer and/or Buyer Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision for or action of all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the each such Person. No Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability the right to any Seller Guarantor object to, dissent from, protest or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to otherwise contest the Seller Guarantors and the Sellerssame. The powersprovisions of this Section, immunities including the power of attorney granted hereby, are independent and rights to indemnification granted to the Seller Representative Group severable, are irrevocable and coupled with an interest and will shall not be irrevocable terminated by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation act of any Seller and shall be binding on any successor theretoone or more Sellers, and shall survive the delivery or by operation of an assignment Law, whether by any Seller of the whole death or any fraction of his, her or its interest in the Adjustment Escrow Amountother event.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Sellers according to each Seller’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Seller Representative at any time by written notice delivered to resign or be removed without the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Majority Holders having first appointed a new Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers who shall assume such duties immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive upon the resignation or removal of Seller Representative. In the event of the death, incapacity, resignation or removal of Seller Representative, a new Seller Representative shall be appointed by the vote or any member written consent of the Advisory Group Majority Holders. Notice of such vote or a copy of the written consent appointing such new Seller Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Buyer; provided, that until such notice is received, Buyer and Buyer Parent shall be entitled to rely on the Closing and/or any termination decisions and actions of this Agreement and the Escrow Agreementprior Seller Representative as described in Section 10.1(a) above.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required liable to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or Sellers for actions taken pursuant to this Agreement, the Escrow Agreement or any other Transaction Document (including the transactions contemplated hereby Adjustment Escrow Agreement), except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or thereby. Furthermoreinvolved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with fundsadvice of counsel, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses accountants and liabilities which may be incurred other professionals and experts retained by the Seller Representative in performing such actions.
(d) The and reasonably relied upon by Seller Representative shall be entitled to: conclusive evidence of good faith). The Sellers shall indemnify and hold harmless Seller Representative from and against, compensate it for, reimburse it for and pay any and all Liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Seller Representative under this Agreement and the other Transaction Documents (i) rely upon the Payment Schedule“Representative Losses”), (ii) rely upon any signature believed by in each case as such Representative Loss is suffered or incurred; provided that, in the event it to be genuine, and (iii) reasonably assume is finally adjudicated that a signatory has proper authorization Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Seller Representative, Seller Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to sign on behalf of such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied from the applicable Seller or other partySellers.
Appears in 1 contract
Seller Representative. (a) Each Seller Guarantor By their execution of this Agreement and each Seller delivery of their Company Interests and/or their acceptance of any consideration pursuant to this Agreement, Sellers hereby irrevocably appoints appoint the Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful the representative, attorney-in-fact and agent of Sellers in connection with full power of substitution the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. In connection therewith, the Seller Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Seller Representative shall deem necessary or appropriate, and shall have the power and authority to, in each case, in the name and on behalf of such Sellers:
(i) act for Sellers with regard to all matters pertaining to this Agreement;
(ii) act for Sellers to transact matters of litigation or arbitration with regard to all matters pertaining to this Agreement;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient Representative deems necessary or appropriate to facilitate in connection with the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to transactions contemplated by this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution waiving any closing conditions on behalf of Sellers or deem any disputes or claims; closing condition satisfied);
(iv) making determinations receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of Sellers, any further act or deed that the Seller Representative deems necessary or appropriate in the Seller Representative’s discretion relating to settle any dispute the subject matter of this Agreement as fully and completely as Sellers could do if personally present;
(vi) give and receive all notices required to be given or received by Sellers under this Agreement;
(vii) agree to, negotiate and/or comply with the determination of the Final Working Capital Statement and the Final Working Capital Amount pursuant to Section 1.5;
(viii) agree to, negotiate, enter into settlements and compromises and/or comply with arbitration awards and court Orders with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification made by Buyer under Article 8 and resolving, settling or compromising any such claimVI; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and and
(ix) performing receive service of process in connection with any claims under this Agreement.
(b) The Seller Representative shall act for Sellers on all acts, as contemplated by or deemed advisable by of the matters set forth in this Agreement in the manner the Seller Representative believes to be in connection with this Agreement, the Escrow Agreement, the best interest of Sellers. The Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation is authorized to act on behalf of the Sellers notwithstanding any dispute or disagreement among Sellers, except . In taking any action as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in Representative, the Seller Representative Engagement Agreementmay rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person whom the Seller Representative reasonably believes to be authorized thereunto.
(c) In the event the Seller Representative becomes unable to perform the Seller Representative’s responsibilities hereunder, Sellers (acting by a written instrument signed by Sellers who held, as of immediately prior to the Closing, a majority (by voting power) of the then outstanding Company Interests) shall select another representative to fill the vacancy of the Seller Representative, and such substituted representative shall be deemed to be the Seller Representative for all purposes of claritythis Agreement. The Seller Representative shall provide Buyer prompt written notice of any replacement of the Seller Representative, there are no obligations including the identity and address of the new Seller Representative. Upon any replacement of the Seller Representative, if requested by Buyer, the substitute Seller Representative shall execute a confidentiality agreement in connection with such appointment.
(d) For all purposes of this Agreement:
(i) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative in as to the settlement of any ancillary agreement, schedule, exhibit disputes or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers claims under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, or any other actions required or permitted to be taken by the Seller Representative Engagement Agreement and the transactions contemplated hereby and therebyhereunder, and no Party shall be final, binding and conclusive have any cause of action against Buyer for any action taken by Buyer in reliance upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent instructions or instruction of Seller Representative as being the decision, act, consent or instruction of each decisions of the Seller Guarantors Representative;
(ii) the provisions of this Section 1.6 are independent and the Sellers (without investigation) severable, are irrevocable and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will shall be irrevocable by enforceable notwithstanding any rights or remedies that any Seller Guarantor or any Seller may have in any manner or for any reason and survive connection with the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment transactions contemplated by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.this Agreement; and
(biii) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will this Section 1.6 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, assignees and successors of each Seller, and any references in this Agreement to a Seller Guarantorsshall mean and include the successors to the rights of each applicable Seller hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(e) Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified agree that the Seller Representative has resigned shall not be liable for any Damages while acting in good faith and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event exercise of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor its reasonable judgment and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance acceptance or administration of its duties under this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Verb Technology Company, Inc.)
Seller Representative. (a) Each In order to administer efficiently the determination of the Final Closing Adjustment Statement, the Final Earnout Statement, the defense and/or settlement of any indemnification obligations of the Seller Guarantor Parties and each any other obligations of the Seller Parties contained in this Agreement, the Seller Parties hereby irrevocably appoints Seller Representative to act appoint Holdings as such Seller Guarantor’s and such Seller’s exclusive representative, agent and true and lawful attorney-in-fact with full power (the “Seller Representative”) for each Seller Party (i) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement, the Seller Ancillary Documents and the Purchaser Ancillary Documents, including those relating to the determination of substitution the Final Closing Adjustment Statement, the determination of the Final Earnout Statement, indemnification claims, and any other claims or obligations contained in this Agreement, (ii) to do make decisions on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Parties with respect to the purchase price adjustments transactions and other matters contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Seller Ancillary Documents, including regarding (A) the determination of the Final Closing Date Balance Sheet, (B) the determination of the Final Earnout Statement, (C) indemnification claims, (D) amendments to this Agreement, the Seller Representative Engagement Agreement Ancillary Documents, or the Purchaser Ancillary Documents, (E) the preparation and review of any Tax Returns and (F) the defense of third party suits that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such third party suits or claims by the Purchaser for indemnification, or any other claims contained in this Agreement, and (iii) to take other actions on behalf of any Seller Party as contemplated by this Agreement, the Seller Ancillary Agreements. Notwithstanding the foregoingDocuments, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decisionPurchaser Ancillary Documents, act, consent or instruction including the exercise of all rights granted to any Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers Party under this Agreement, the Seller Ancillary AgreementsDocuments, or the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Purchaser Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow AmountDocuments.
(b) If at any time there is more than one Person appointed to serve as In the event that the Seller RepresentativeRepresentative becomes unable to perform its responsibilities hereunder or resigns from such position, any act the Seller Parties shall, by election of the Seller Representative will require the act of Parties (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority in interest of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority voting power of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered Company prior to the Seller GuarantorsClosing, the Sellers select another representative to fill such vacancy and such substituted representative shall be deemed to Acquiror. If at any time there is no Person acting as be the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination all purposes of this Agreement and the Escrow Agreement.
(c) The All decisions and actions by the Seller Representative acknowledges that it has read and understands this Section 13.18Representative, including the defense or settlement of any claims for which any Seller Parties may be required to indemnify the Purchaser pursuant to Article VIII hereof, shall be binding upon all of the Seller Parties, and xxxxxx accepts such appointment. Certain Sellers no Seller Party shall have entered into an engagement agreement the right to object, dissent, protest or otherwise contest the same.
(the “d) Each Seller Representative Engagement Agreement”Party agrees that:
(i) with he, she or it shall not have any cause of action against the Seller Representative to provide direction to for any action taken or not taken, decision made or instruction given by the Seller Representative in connection with its services under this Agreement, the Escrow Agreementexcept for fraud, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellersgross negligence, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action willful misconduct or omission bad faith by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement;
(ii) he, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence she or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend it shall indemnify and hold harmless the Seller Representative Group from and against any and all Damagesloss, losses, claims, liabilities, fees, costs, expenses liability or expense (including fees, disbursements the reasonable fees and costs expenses of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”counsel) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Seller Representative; provided, however, that no Seller Party shall be liable under this Section 8.16(d)(ii) in an amount in excess of the amount of the Purchase Price actually received by such Seller Party and its Affiliates pursuant to this Agreement;
(iii) the provisions of this Section 8.16 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies any Seller Party may have in connection with the transactions contemplated by this Agreement, the Seller Ancillary Documents or the Purchaser Ancillary Documents;
(iv) the remedy at law for any breach of the provisions of this Section 8.16 would be inadequate; and
(v) the provisions of this Section 8.16 shall be binding upon the successors and assigns of each Seller Party.
(e) Any decision, act, consent or instruction of the Seller Representative relating to this Agreement, the Seller Ancillary Documents, or the Purchaser Ancillary Documents shall constitute a decision for all Seller Parties, and shall be final, binding and conclusive upon the Seller Parties, and the Purchaser may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of every Seller Party. Each Seller Party acknowledges and agrees that Xx. Xxxxxxx has the authority to act on behalf of the Seller Representative, and the Purchaser may rely upon any decision, act, consent or instruction of Xx. Xxxxxxx in his capacity as a representative of the Seller Representative as being the decision, act, consent or instruction of the Seller Representative for all purposes.
(f) The Seller Representative hereby accepts its obligations under this Agreement. The Seller Representative shall have only the duties expressly stated in this Agreement and the Escrow Agreement, and shall have no other duty, express or implied. The Seller Representative is not, by virtue of serving as Seller Representative, a fiduciary of the Seller Parties or any other Person. The Seller Representative, solely in its capacity as such, has no personal responsibility or liability for any representation, warranty or covenant of the Company or the Seller Parties.
(g) The Seller Representative shall not be liable to any Seller Party for any action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Seller Representative shall not be relieved of any liability imposed by law for fraud, gross negligence, willful misconduct or bad faith. The Seller Representative shall not be liable to the Seller Parties for any apportionment or distribution of payments made by the Seller Representative in good faith, and, if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Seller Party to whom payment was due, but not made, shall be to recover from other Seller Parties any payment in excess of the amount to which they are determined to have been entitled. The Seller Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Seller Representative nor any agent employed by it shall incur any liability to any Seller Party by virtue of the failure or refusal of the Seller Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of its other duties hereunder, except for actions or omissions constituting fraud, gross negligence, willful misconduct or bad faith.
(h) The Seller Representative Expense Fund Amount shall be withheld in an account maintained by the Seller Representative (or a financial institution selected by the Seller Representative) as a fund for the fees and expenses (including any legal fees and expenses) incurred by the Seller Representative in connection with the negotiation and execution of this Agreement and the Escrow Agreement and the completion of the transactions contemplated hereby and thereby, and the payment of other obligations of the Seller Representative and the Seller Parties related thereto (the “Seller Representative Expense Fund”). Any balance of the Seller Representative Expense Fund not utilized for such purposes is to be returned to the Sellers based upon each such Seller’s pro rata share of such amount in accordance with the ownership percentages set forth on Schedule 1.1. For the avoidance of doubt, all amounts returned to the Sellers pursuant to this Section 8.16(h) shall be net of the aggregate amount of any Change of Control Payments due and payable with respect to such amounts returned (which shall include the employer portion of any employment, payroll or other Tax withholdings or similar Taxes thereon), which aggregate amount shall be paid by the Seller Representative to the Company, and the Company shall pay such amount to the applicable payee(s) at such same time. In the event that the Seller Representative Expense Fund Amount shall be insufficient to satisfy the fees and expenses of, and other amounts payable by, the Seller Representative, and in the event there are any remaining funds in the Adjustment Escrow Amount or the Indemnity Escrow Amount to which the Seller Representative is entitled to distribution pursuant to the terms of this Agreement and the Escrow Agreement on behalf of the Sellers, then immediately prior to the final distribution from the Adjustment Escrow Amount or the Indemnity Escrow Amount to the Seller Representative on behalf of the Seller Parties pursuant to this Agreement and the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as shall be entitled to recover any such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, expenses from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable and the Indemnity Escrow Amount to the Sellers at extent of such funds prior to the time distribution of distribution, and second, funds to the Seller Parties. The Seller Representative shall also be entitled to recover any remaining expenses directly from the Sellers. The Sellers acknowledge that Seller Parties, and the Seller Representative shall not be required have any obligation to expend or risk its own personally advance funds or otherwise incur any financial liability in connection with the exercise or performance of any of its powers, rights, duties or privileges or pursuant to as the Seller Representative under this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the .
(i) The Seller Representative shall not be required entitled to take and shall not charge or collect from the Seller Parties or any action unless other Person any fees or other compensation for its services as the Seller Representative has been provided under this Agreement. The Seller Representative, however, shall be entitled to reimbursement from the Sellers (based on their pro rata share of such expenses in accordance with funds, security or indemnities which, the ownership percentages set forth on Schedule 1.1) for its reasonable out-of-pocket expenses incurred in connection with its determination, are sufficient to protect services as the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsunder this Agreement.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Repay Holdings Corp)
Seller Representative. (a) Each Seller Guarantor 9.13.1 By the execution and delivery of this Agreement, each Seller of the Sellers hereby irrevocably constitutes and appoints Seller Representative to act Touchstone Wireless Investment Partners, LLC, as such Seller Guarantor’s and such Seller’s exclusive agent and the true and lawful attorney-in-agent and attorney in fact (in such capacity, the “Seller Representative”) of the Sellers with full power of substitution to do on behalf of such Seller Guarantor act in the name, place and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation stead of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute Sellers with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting thereby as the Seller Representative for any reasonmay deem appropriate, the Seller Guarantors and to act on behalf of the Sellers will promptly designate a new Person by a majority decision made by in any litigation or arbitration involving this Agreement or the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act Escrow Agreement, do or refrain from doing all such further acts and things, and execute all such documents as the Seller Representative and notify Acquiror shall deem necessary or appropriate in writing of such determination. Following connection with the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made transactions contemplated by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement, including the power:
(i) to act for the Sellers with regard to matters pertaining to the determination of the Purchase Price, the adjustment to the Purchase Price and pertaining to the indemnification referred to in this Agreement, including the power to settle any indemnity claim on behalf of the Sellers and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Seller Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;
(iii) to authorize the release of funds, to receive funds and to give receipts for funds, including the Purchase Price and in respect of any adjustments to the Purchase Price or any amounts distributed under the Escrow Agreement;
(iv) to negotiate, arbitrate and settle any adjustment to the Purchase Price under Section 2.3;
(v) to do or refrain from doing any further act or deed on behalf of the Sellers that the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Sellers could do if personally present;
(vi) to receive service of process in connection with any claims under this Agreement or the Escrow Agreement;
(vii) to sign the Seller Closing Certificate on behalf of each Seller unless such Seller has otherwise previously advised the Seller Representative in writing prior to Closing (it being understood that Buyer shall have the right to rely on such executed Seller Closing Certificate as binding on each Seller); and
(viii) to accept notices in accordance with Section 12.5.
9.13.2 Touchstone Wireless Investment Partners, LLC hereby agrees and consents to its appointment as the Seller Representative pursuant to this Section 9.13 effective as of the date of this Agreement. The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Seller Representative in all matters referred to herein; provided, however, that the Seller Representative shall have the right to resign and appoint a successor Seller Representative on thirty (c30) days’ advance notice to the Sellers and Buyer. All actions and decisions of Seller Representative shall be binding and conclusive on each Seller. All notices required to be made or delivered by Buyer to the Sellers shall be made to the Seller Representative for the benefit of the Sellers and shall discharge in full all notice requirements of Buyer to the Sellers with respect thereto. The Sellers hereby confirm all that the Seller Representative shall do or cause to be done by virtue of its appointment as the Seller Representative of the Sellers. The Seller Representative acknowledges will have no liability to the Sellers or their successors or assigns with respect to actions taken or omitted to be taken in its capacity as Seller Representative, and shall be entitled to indemnification from the Sellers against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Seller Representative (such indemnification rights to include the right to set off any such loss, liability or expense against payments due to the Sellers). All fees and expenses incurred by the Seller Representative pursuant to this Agreement shall be paid by the Sellers in accordance with their pro rata shares of the purchase price. For the avoidance of doubt, the Sellers agree that it has read and understands there shall be no recourse to the Seller Representative directly or personally for any payments required to be made by the Seller Representative in its capacity as such hereunder.
9.13.3 If any individual Seller should die or become incapacitated, if any trust or estate should terminate or if any other similar event should occur, any action taken by the Seller Representative pursuant to this Section 13.189.13 shall be valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Seller Representative or Buyer shall have received notice of such death, incapacity, termination or similar event.
9.13.4 The Sellers acknowledge and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement agree that One Hundred Thousand Dollars ($100,000) (the “Seller Representative Engagement AgreementReserve”) of the Purchase Price will be withheld from the Closing Date Purchase Price to cover the costs and expenses of the Seller Representative, including expenses associated with 2010 Tax preparation, dissolution and winding up of the General Partner and legal and accounting fees incurred prior to or after the Closing. To the extent the Seller Representative to provide direction Reserve is not used, in the discretion of the Seller Representative, it shall be paid to the Seller Representative in connection with its services under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including Sellers based on their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member pro rata shares of the Advisory Group (collectivelypurchase price, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with following the Seller Representative’s services pursuant determination that such reserve is no longer necessary to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except or advisable in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any discharge of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionshereunder.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Brightpoint Inc)
Seller Representative. (a) Each Seller Guarantor In addition to the other rights and each Seller irrevocably appoints authority granted to the Seller Representative elsewhere in this Agreement, all of the Seller collectively and irrevocably hereby constitute and appoint the Seller Representative as their agent and representative to act as such Seller Guarantor’s from and such Seller’s exclusive agent after the date hereof and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing things and execute any and all documents, documents which the Seller Representative determine may be necessary, convenient or appropriate in connection with the transactions contemplated by this Agreement or otherwise to facilitate perform the consummation of duties or exercise the Stock Purchaserights granted to the Seller Representative hereunder, including: (i) receiving execution of any documents and disbursing payments certificates pursuant to be made hereunderthis Agreement; (ii) receiving receipt of payments under or pursuant to this Agreement and disbursement thereof to the Seller, Purchaser, any Indemnitee and any other Person, including giving any instructions to the Escrow Agent; (iii) receipt and, if applicable, forwarding of notices and communications pursuant to this Agreement Agreement; (iv) administration of the provisions of this Agreement; (v) giving or agreeing to, on behalf of all or any of the Seller, any and all consents, waivers, amendments, modifications, extension or termination deemed by the Seller Ancillary Agreements; (iii) administering Representative, in its sole and absolute discretion, to be necessary or appropriate under or pursuant to this Agreement and the Seller Ancillary Agreements, including the initiation and resolution execution or delivery of any disputes documents that may be necessary or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12appropriate in connection therewith; (vi) agreeing to amendments of this Agreement(A) disputing or refraining from disputing, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in Seller relative to any amounts to be received or paid by the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any agreement contemplated hereby, any claim made by Purchaser, Purchaser Representative or Pubco under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each the Seller, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby, and (C) executing, on behalf of the Seller, any settlement agreement, release or other document with respect to such dispute or remedy; (vii) engaging attorneys, accountants, agents or consultants on behalf of the Seller Ancillary in connection with this Agreement will be considered a payment by Acquiror or any other agreement contemplated hereby and paying any fees related thereto; (viii) managing, controlling, defending and settling on behalf of an Indemnitor any indemnification claims against any of them under Article IX, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section 9.4; (ix) making on behalf of such Person any determinations and taking all actions on their behalf relating to the Seller Guarantors and determination of Finally Determined Exchange Shares, the Sellers. The powers, immunities and rights to indemnification granted adjustment to the Seller Representative Group are coupled Exchange Consideration under Section 2.5 and any disputes with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor respect thereto, and shall survive the delivery of an assignment by any Seller release of the whole or any fraction Escrow Property under Section 2.4; and (x) acting on behalf of hissuch Person under the Escrow Agreement. For the avoidance of doubt, her or its interest in the Adjustment Escrow AmountSeller Representative, acting individually, shall have the authority to take the actions authorized by this Section 13.14 on behalf of the Seller.
(b) If at The Purchaser Representative and Purchaser and Pubco may conclusively and absolutely rely, without inquiry, upon any time there is more than one Person appointed to serve as the Seller Representative, any act actions of the Seller Representative will require as the act of a majority acts of the Seller Representatives hereunder or any Ancillary Document to which will be binding upon the Seller Guarantors, Representative is a party or otherwise have rights in such capacity. The Purchaser Representative and Purchaser shall be entitled to rely conclusively on the Sellers instructions and the Seller Representatives, and upon such act by a majority decisions of the Seller RepresentativesRepresentative as to (i) any payment instructions provided by the Seller Representative or (ii) any other actions required or permitted to be taken by the Seller Representative hereunder, Acquiror willand no Seller shall have any cause of action against the Purchaser Representative, Pubco, Merger Sub, Purchaser, or the Company for any action taken by any of them in reliance thereon, upon the instructions or decisions of the Seller Representative. The Purchaser Representative and Purchaser shall not have any Liability to the Seller for any allocation or distribution among the Seller and the Designated Share Recipients of payments made to or at the direction of the Seller Representative. All notices or other communications required to be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice made or delivered to the Seller Guarantors, under this Agreement or any Ancillary Document to which the Sellers and Seller Representative is a party or otherwise has rights in such capacity shall be made to Acquiror. If at any time there is no Person acting as the Seller Representative for the benefit of the Seller, and any reason, notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementrespect thereto.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18Representative, and xxxxxx accepts such appointment. Certain Sellers in its capacity as such, shall not have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative any personal liability for any amount owed to provide direction to the Seller Representative in connection with its services under this AgreementPurchaser, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and Pubco or any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services Indemnitee pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required personally liable to expend the Seller, in his or risk its own funds capacity as the Seller Representative, for any personal liability of the Seller or otherwise incur otherwise, or for any financial liability error of judgment, or any act done or step taken or omitted by it, or for any mistake in the exercise fact or performance of any of its powersLaw, rights, duties or privileges for anything which it may do or pursuant to refrain from doing in connection with this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actions.
(d) The If the Seller Representative shall die, become disabled, dissolve (in the case of an entity), resign or otherwise be entitled to: unable or unwilling to fulfill his, her or its responsibilities as representative and agent of Seller, then the Seller shall, within ten (i10) rely upon days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative notify the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, Purchaser Representative and/or Purchaser and (iii) reasonably assume that a signatory has proper authorization to sign on behalf Pubco in writing of the applicable identity of such successor. Any such successor so appointed shall become a “Seller or other partyRepresentative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (East Stone Acquisition Corp)
Seller Representative. (a) Each The General Partner shall serve as the representative of the Stockholders with respect to matters arising in connection with the post-closing adjustments set forth in Section 1.8, the indemnification rights and obligations set forth in Article VII, matters arising under or relating to the Escrow Agreement and matters arising under Section 1.13(a)(iv) and all other matters arising under or related to this Agreement (in such capacity, the “Seller Guarantor Representative”). The approval of the Merger by the Stockholders shall constitute approval of each Stockholder individually (regardless of whether such Stockholder votes in favor of the approval of the Merger) to the same extent as if such Stockholder were a party to this Agreement of all terms and each Seller irrevocably appoints provisions of this Agreement and of the Escrow Agreement and of all of the arrangements related thereto, including, without limitation, the placement of the Indemnification Escrow Amount and Post-Closing Adjustment Escrow Amount into escrow and the appointment of the Seller Representative pursuant to act this Section 1.10(a).
(b) The Seller Representative shall have all of the rights and shall perform all of the obligations of the Seller Representative as such Seller Guarantor’s set forth in the Escrow Agreement and such Seller’s this Agreement, and shall have the exclusive agent right, power and true and lawful attorney-in-fact with full power of substitution to do authority, on behalf of such the Stockholders, (w) to take any actions the Seller Guarantor and such Seller any and all things, including executing any and all documents, which Representative may be necessary, convenient deem necessary or appropriate to facilitate the consummation proper on behalf of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications Stockholders in connection with the post-closing adjustments pursuant to this Agreement Section 1.8, (x) to pursue, defend, and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising indemnification claims for indemnification asserted against the Seller Guarantors and the Sellers made pursuant to Article 12; (vi) agreeing VII, and to amendments of this Agreement, waivers of conditions do all things and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any to take all other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative may consider necessary or proper to resolve any indemnification claims after the Effective Time, (y) to consent to the sale of the Hxxxx Street Property without retaining an interest in the Hxxxx Street Rent Escrow or Hxxxx Street Improvements Escrow, and (z) give and receive all notices, make all decisions and take all other actions on behalf of the Stockholders in connection with this Agreement.
(c) All decisions and actions by the Seller Representative pursuant to its authority granted herein shall be binding upon each Stockholder and no Stockholder shall have any right to object, dissent, protest or otherwise contest the Escrow Agreementsame. Buyer shall be entitled to deal with and rely conclusively on the Seller Representative as provided herein as if, and with the same effect as if, the Seller Representative Engagement Agreement constituted all Stockholders and Buyer shall not be under any obligation to involve itself with the Seller Ancillary AgreementsRepresentative’s performance for the benefit of the Stockholders or the Stockholders’ relationship among themselves. Notwithstanding any provision herein to the foregoingcontrary, the Seller Representative shall have no obligation Representative’s power and authority to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and Stockholders shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror limited to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read and understands this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services extent required under this Agreement, the Escrow Agreement, the Seller Ancillary Agreements and the Seller Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, except in the event of liability directly resulting from the Seller Representative’s Fraud, gross negligence or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsapplicable Law.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, have full power and (iii) reasonably assume that a signatory has proper authorization to sign authority on behalf of each Stockholder to take any and all actions, execute any and all instruments, and execute or waive any and all rights and obligations of each Stockholder in connection with the applicable matters covered by Section 1.8, Article VII and Section 1.13(a)(iv) and all other matters arising under or relating to this Agreement. The Seller Representative may be changed by the holders of a majority in interest of the Stockholders from time to time upon not less than 10 days’ prior written notice to Buyer. The Seller Representative may resign upon thirty (30) days’ notice to Buyer and the Stockholders. Notwithstanding the prior two sentences, the Seller Representative at all times shall be the same Person as the Interest Holders’ Representative (as defined in the Put/Call Agreement). No bond shall be required of the Seller Representative, and the Seller Representative shall receive no compensation for his or her services in such capacity. Notices or communications to or from the Seller Representative shall constitute notice to or from each of the Stockholders. The Seller Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of Seller’s former officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Seller Representative shall treat confidentially and not disclose the Seller Rent Roll and any other lease information related to the Seller Properties to anyone (except on a need to know basis to individuals who agree to treat such information confidentially or in connection with any arbitration or other partydispute resolution proceeding).
Appears in 1 contract
Seller Representative. (a) Each Sellers hereby appoint Xxxxxxx X. Xxxxxxx to serve as the “Seller Guarantor and each Seller irrevocably appoints Representative” for purposes of all matters expressly set forth in this Agreement to be performed by the Seller Representative and Xx. Xxxxxxx hereby consents and agrees to such appointment. The Seller Representative may be removed from such position at any time upon the written election of Sellers who collectively hold a majority of the Pro Rata Percentages (a “Seller Majority”); provided that a Seller Majority elects a replacement Seller Representative prior to or simultaneously with such removal, and Buyer is given prompt written notice of such replacement; provided further that no such designation of a replacement Seller Representative shall be effective unless and until such replacement Seller Representative has agreed in writing to serve in such capacity. The designation of the Seller Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any Seller. Each replacement Seller Representative shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Seller Representative and the term “Seller Representative” as used herein shall be deemed to include any such replacement Seller Representative. The Seller Representative, including any replacement of any such Seller Representative, is authorized to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact for Sellers with full power of substitution and authority, in its discretion, to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to enforce this Agreement and the Seller Ancillary Agreements; (iii) administering this Escrow Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors parties hereto and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by to execute any Seller of the whole amendment or any fraction of his, her or its interest in the Adjustment Escrow Amount.
(b) If at any time there is more than one Person appointed to serve as the Seller Representative, any act of the Seller Representative will require the act of a majority of the Seller Representatives which will be binding upon the Seller Guarantors, the Sellers and the Seller Representatives, and upon such act by a majority of the Seller Representatives, Acquiror will, in reliance thereon, be entitled to all benefits and protections of this Section 13.18(b) as though such act were the unanimous act of all Seller Representatives. Any Seller Representative may resign as a Seller Representative at any time by written notice delivered to the Seller Guarantors, the Sellers and to Acquiror. If at any time there is no Person acting as the Seller Representative for any reason, the Seller Guarantors and the Sellers will promptly designate a new Person by a majority decision made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date to act as the Seller Representative and notify Acquiror in writing of such determination. Following the time that Acquiror is notified that the Seller Representative has resigned and until such time as a new Person is designated to act as the Seller Representative as provided herein and Xxxxxxxx is so notified in writing, the Sellers collectively will act as the Seller Representative, with decisions made by the Seller(s) holding a majority of the shares of the Company Stock held by the Sellers immediately prior to the Agreement Date. The immunities and rights to indemnification shall survive the resignation or removal of the Seller Representative or any member of the Advisory Group and the Closing and/or any termination waiver of this Agreement and the Escrow Agreement.
(c) The Seller Representative acknowledges that it has read Agreement and understands any other document or instrument necessary or advisable in order to carry out the provisions of this Section 13.18, and xxxxxx accepts such appointment. Certain Sellers have entered into an engagement agreement (the “Seller Representative Engagement Agreement”) with the Seller Representative to provide direction to the Seller Representative in connection with its services under this Agreement, Agreement or the Escrow Agreement, to give and receive notices and communications and, without limiting the Seller Ancillary Agreements foregoing provisions of this Section 10.14, dispute any decision or determination of Buyer following the Closing, to agree to, negotiate, enter into settlements and the Seller Representative Engagement Agreement (such Sellerscompromises of, including their individual representatives, collectively hereinafter referred and to as the “Advisory Group”). The Seller Representative and its members, managers, directors, officers, contractors, agents and employees and any member of the Advisory Group (collectively, the “Seller Representative Group”) will incur no liability of any kind comply with court orders with respect to any action or omission dispute, to take any of the actions contemplated by the Seller Representative in connection with the Seller Representative’s services pursuant to under this Agreement, Agreement or the Escrow Agreement, Agreement and to take all actions necessary or appropriate in the judgment of the Seller Representative Engagement Agreement and for the Seller Ancillary Agreements, except in the event accomplishment of liability directly resulting from the Seller Representative’s Fraud, gross negligence any or willful misconduct. The Seller Guarantor and Sellers will indemnify, defend and hold harmless the Seller Representative Group from and against any and all Damages, losses, claims, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements, in each case, as such Seller Representative Expenses are suffered or incurred. Such Seller Representative Expenses may be recovered first, from any distribution of the Adjustment Escrow Amount or Earn-Out Payment otherwise distributable to the Sellers at the time of distribution, and second, directly from the Sellers. The Sellers acknowledge that the Seller Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Seller Representative shall not be required to take any action unless the Seller Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Seller Representative against the costs, expenses and liabilities which may be incurred by the Seller Representative in performing such actionsforegoing.
(d) The Seller Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or other party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Accel Entertainment, Inc.)
