Seller Representative. (a) Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement. (b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative). (c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely. (d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Seller Representative. (a) By virtue of the adoption of this Agreement by the Sellers other than [***], and without further action of any such Seller, each such Seller Group, shall be deemed to have irrevocably constituted and appointed [***] (and by delivery execution of a Letter of Transmittal, on behalf of itself and its successors and assigns, this Agreement [***] hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity accepts such appointment) as the Seller Representative, as the true and lawful agent and attorney-in-fact (in such capacity, the “Seller Representative”) for and on behalf of such Persons the Sellers (in their capacity as such), with full powers power of substitution substitution, to act in the name, place and stead of thereof each Seller with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees facilitate the consummation of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided taking by the Seller Representative or (iii) of any other and all actions and the making of any decisions required or permitted to be taken by the Seller Representative hereunderunder Section 2.2 or Article 7. The power of attorney granted in this Section 8.1 is coupled with an interest and is irrevocable, and neither may be delegated by the Seller nor any Indemnifying Party Representative and shall have any cause survive the death or incapacity of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions each Seller. No bond shall be required of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative receive no compensation for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)his services.
(cb) The Seller Representative will shall not be liable to any Person for any act for the Seller on all of the matters set forth taken in this Agreement good faith and in the manner the Seller Representative believes to be in the best interest exercise of the Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) his reasonable judgment and arising out of or in connection with the acceptance or administration of the Seller Representative’s his duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and this Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faithfaith and reasonable judgment), and shall not be liable for, and may seek indemnification from the Sellers for, any Losses incurred by the Seller Representative, except to the extent of any Losses actually incurred as a proximate result of the gross negligence or bad faith of the Seller Representative. The Seller Representative shall be fully protected in relying upon entitled to recover any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as costs and expenses reasonably incurred by the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to in connection with actions taken by the Seller Representative under pursuant to the terms of Section 2.2 or Article 7 of this Agreement or Article 5 or Section 9.17 shall survive 11.12 of the Closing Collaboration Agreement (including the payment of brokers’ fees and continue indefinitelyexpenses, the hiring of legal counsel and the incurring of legal fees and costs), from the Sellers jointly and severally, including, without limitation, by deducting such costs and expenses from amounts otherwise distributable to the Sellers.
(dc) If From and after the date of this Agreement, any decision, act, consent or instruction of the Seller Representative with respect to Section 2.2 or Article 7 shall dieconstitute a decision of all Sellers and shall be final, become disabledbinding and conclusive upon each Seller, dissolveand the Buyer may rely upon any decision, resign act, consent or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent instruction of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined 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 board of directors Buyer in accordance with any such decision, act, consent or instruction of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 3 contracts
Samples: Collaboration Agreement (Pdi Inc), Collaboration Agreement (Pdi Inc), Collaboration Agreement (Pdi Inc)
Seller Representative. (a) Xxxxxxx have appointed Xxxxx Xxxx to act as the agent, proxy, attorney-in-fact and representative for the Sellers and their successors and assigns for all purposes under this Agreement (the “Seller GroupRepresentative”), and the Seller Representative, by delivery of a Letter of Transmittalhis signature below, agrees to serve in such capacity.
(b) The Seller Representative shall have the power and authority to take such actions on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity each Seller as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution in his sole judgment, may deem to act be in the namebest interests of the Sellers or otherwise appropriate on all matters related to or arising from this Agreement or any other Transaction Document. Such powers shall include:
(i) executing and delivering this Agreement, place the other Transaction Documents, any certificates, consents and stead other documents contemplated by this Agreement, and any and all supplements, amendments, waivers or modifications thereto;
(ii) giving and receiving notices and other communications relating to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby;
(iii) taking or refraining from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of thereof with respect or related to this Agreement, including matters in ARTICLE IX, the other Transaction Documents and the performance on behalf or enforcement of such Person under the terms obligations, duties and provisions of rights pursuant to this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity other Transaction Documents;
(together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing iv) taking all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem actions necessary or appropriate in connection with any of disputes regarding the transactions contemplated under Estimated Closing Statement or the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; Final Calculations;
(v) employing and obtaining the advice of legal counselengaging attorneys, accountants accountants, financial and other professional advisors as the Seller Representativeadvisors, paying agents and other persons necessary or appropriate, in its reasonable discretion, deems necessary or advisable in the performance sole and absolute discretion of its duties as the Seller Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From Agreement and after any other Transaction Documents; and
(vi) taking all actions necessary or appropriate in the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part judgment of the Seller Representative for the accomplishment of the foregoing.
(in its capacity c) The power of attorney appointing the Seller Representative as such) attorney-in-fact is coupled with an interest and arising out the death or incapacity of any Seller shall not terminate or in connection with diminish the acceptance or administration authority and agency of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. .
(d) The Seller Representative shall not be liable to the Sellers for any act done action taken or omitted under any Seller Representative Document as to be taken by the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted his capacity as Seller Representative pursuant to the advice terms of counsel this Agreement, except to the extent such action or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted intentional misconduct or fraud. Reasonable legal fees incurred by Seller Representative in connection with serving as Sellers Representative shall be conclusive evidence borne by the Sellers.
(e) The Sellers shall, jointly and severally, indemnify, defend and hold harmless the Seller Representative and his heirs, representatives, successors and assigns, from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Seller Representative pursuant to the terms of this Agreement, except to the extent such good faithaction or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted intentional misconduct or fraud on the part of the Seller Representative; provided, that no Seller shall be liable to the Seller Representative pursuant to this Section 2.3(e) for any amount in excess of the portion of the Transaction Consideration to which such Seller is entitled pursuant to this Agreement. In addition, each Seller forever voluntarily releases and discharges the Seller Representative, his heirs, representatives, successors and assigns, from any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs), whether known or unknown, anticipated or unanticipated, arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Seller Representative pursuant to the terms of this Agreement, except to the extent such action or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted intentional misconduct or fraud. The Seller Representative shall be fully protected in relying upon any written noticeentitled to recover from each Seller based on such Seller’s Pro Rata Portion of the Transaction Consideration, demand, certificate or document that it in good faith believes to be genuine, expenses (including facsimiles or copies thereof, attorneys’ fees and no Person shall have any Liability for relying on court costs) incurred by the Seller Representative in defending any claim, demand, suit, action or cause of action.
(f) Each Seller agrees that Purchaser shall be entitled to rely, and shall be fully protected in relying, on any action taken, or any action not taken, by the foregoing manner. In connection with Seller Representative, on behalf of such Seller, pursuant to this Section 2.3(f) (an “Authorized Action”), and that each Authorized Action shall be binding on each Seller as fully as if such Seller had taken such Authorized Action.
(g) Purchaser shall not be liable to any Seller Indemnitee for Losses sustained by any such Seller Indemnitee, to the extent arising out of or related to the performance of its rights and obligations hereunderof, or failure to perform by, the Seller Representative shall have the right at of his obligations set forth in this Agreement or any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expensesTransaction Documents, as applicable, nor shall the actions of, or the failure to act by, the Seller Representative may reasonably deem necessary be used as a defense against any claim for Losses made by a Purchaser Indemnitee pursuant to this Agreement or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyany other Transaction Documents.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Seller Representative. (a) Seller GroupBy the execution and delivery of this Agreement (and with respect to Company Shareholders, by delivery of a Letter of Transmittal), the Company (solely with respect to periods prior to the Effective Time) and each Company Shareholder on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Xxxxxxxxx Xxx in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of the Company and such Persons Company Shareholder with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any certain indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (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 indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any indemnification claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller Company, each Company Shareholder and its their respective successors and assigns, and neither they (nor any other Party Party) shall not have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Company and the Company Shareholders hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller Company, any Company Shareholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller Company or any Company Shareholder or Indemnifying Party for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller Company or a Company Shareholder under this Agreement or any Ancillary Document to which the Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller Company or a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company and the Company Shareholders 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 SellerCompany and the Company Shareholders, but the Seller Representative will not be responsible to Company or the Seller Company Shareholders for any Losses that Company or the Seller Company Shareholders or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller The Purchaser shall indemnify, defend and hold harmless the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under this Agreement or any Seller Representative Ancillary Document, including the reasonable out-of-pocket fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerPurchaser, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Borqs Technologies, Inc.), Merger Agreement (Pacific Special Acquisition Corp.)
Seller Representative. (a) Each Selling Equityholder has, or prior to the Closing and as a condition to receiving its portion of the Merger Consideration will have, constituted, appointed and empowered, effective from and after the Closing Date, New Holdco to act as a representative for the Selling Equityholders (in such capacity, as “Seller GroupRepresentative”), by delivery for the benefit of a Letter of Transmittal, on behalf of itself the Selling Equityholders and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful exclusive agent and attorney-in-fact of such Persons with full powers of substitution to act in the nameon behalf of each Selling Equityholder, place and stead of thereof with respect to the performance on behalf matters specified in this Section 9.16, which shall include the power and authority: (i) to enforce and protect the rights and interests of the Selling Equityholders and to enforce and protect the rights and interests of such Person Persons arising out of or under the terms and provisions of or in any manner relating to this Agreement and the Ancillary Documents to which transactions provided for herein, from and after the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amendedClosing, and to do take any and all actions which Seller Representative believes are necessary or refrain from doing all such further acts appropriate under this Agreement with respect to any actions provided for in Sections 2.6, 2.9 and thingsArticle VII, for and to execute all such documents on behalf of the Selling Equityholders including (A) consenting to, compromising or settling any objections set forth in the Objection Statement, conducting negotiations with Parent regarding such Personclaims and in connection therewith, if any(B) directing the method of payment for any deferred payments owed to the Selling Equityholders pursuant to Section 2.9 and coordinating with Parent with respect thereto and (C) consenting to, as compromising or settling any Parent Indemnification Claims, conducting negotiations with Parent regarding such claims and in connection therewith, it being understood, in the case of each of (A), (B) and (C), that Seller Representative will deem necessary or appropriate in connection with shall not have any of the transactions contemplated under the Seller Representative Documentsobligation to take any actions, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party shall not have any indemnification claims against liability for any of them under Article VI, including controlling, defending, managing, settling and participating in failure to take any Third Party Claim in accordance with Section (a)actions; (ii) acting on behalf of to make, execute, acknowledge and deliver all such Person under the Escrow Agreement; other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that Seller Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection therewith and (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal engage outside 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any incur such other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including Selling Equityholders in connection with any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative matter arising under this Agreement.
(b) Any other Person, including Parent shall have the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled right to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative upon all actions taken or (iii) any other actions required or permitted omitted to be taken by the Seller Representative hereunderpursuant to this Agreement, and neither the Seller nor any Indemnifying Party all of which actions or omissions shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance be legally binding upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)Selling Equityholders.
(c) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Selling Equityholder and (ii) shall survive the consummation of the Mergers, and any action taken by Seller Representative will act for pursuant to the Seller on all of the matters set forth authority granted in this Agreement in the manner the shall be effective and binding on each Selling Equityholder notwithstanding any contrary action of or direction from such Selling Equityholder, except for actions or omissions of Seller Representative believes to be in the best interest of the Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or constituting willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelymisconduct.
(d) If Seller Representative represents and warrants that it is a Delaware limited liability company, duly organized, validly existing and in good standing under the laws of Delaware, and it has the requisite power and authority, and has taken all action necessary or required, to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Seller Representative and, assuming that this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of Seller Representative.
(e) The rights and obligations of Seller Representative pursuant to this Agreement, and the grant of authority to such Seller Representative set forth in this Section 9.16 may be assigned from time to time upon unanimous written consent of the Selling Equityholders; provided, however, that no such assignment shall be effective unless and until (i) evidence of the consent referred to in the immediately preceding sentence is provided to Parent and (ii) the assignee of such rights and obligations becomes a party to this Agreement by executing a joinder in a form reasonably acceptable to Parent. Upon any such assignment, the Person accepting and assuming the rights and obligations of Seller Representative shall diebecome, become disabledfor all purposes, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreementhereunder.
Appears in 2 contracts
Samples: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Seller Representative. (a) Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller RepresentativeRepresentative as its representative, as the true and lawful agent and attorney-in-fact of such Persons and agent, with full powers power of substitution to act in the name, place and stead of thereof Seller with respect to the performance Transactions, and to act on behalf of such Person under the terms and provisions Seller in any amendment of or litigation involving this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if anydocuments, as the Seller Representative will shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated under Transactions, including the Seller Representative Documents, including: power:
(i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating to take all action necessary or desirable in any Third Party Claim in accordance connection with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision waiver of any Seller Representative Document (provided, that any such action, if material condition to the rights and obligations of the Seller 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 reasonable judgment consummation of the Transactions (it being understood that Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to shall execute and deliver any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any document which Seller Representative Document; agrees to execute);
(viii) employing to give and obtaining the advice of legal counsel, accountants receive all notices and other professional advisors as the Seller Representative, in its reasonable discretion, deems necessary communications to be given 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller received under this Agreement and to distribute receive service of process in connection with any claims under this Agreement;
(iv) to take all actions that under this Agreement may be taken by the same Seller and to the Seller; and (viii) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the that Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in its sole discretion relating to the defense or subject matter of this Agreement as fully and completely as Seller could do if personally present;
(v) to take all actions in connection with the review, negotiation, dispute and agreement with respect to the Closing Purchase Price under Section 1.7;
(vi) to take any and all actions, make any and all decisions and determinations (including settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party decisions) and other actions under and pursuant to Article VI, shall be binding upon ARTICLE 6 and the Seller and its respective successors and assigns, and neither they nor any other Party shall have Escrow Agreement (including authorizing the right to object, dissent, protest or otherwise contest the same. The provisions disbursement of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.funds thereunder); and
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (iivii) any payment instructions provided by the Seller Representative or (iii) any other and all actions required or permitted to be taken by the Seller Representative hereunderunder 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 6.3 (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 neither comply with orders of courts with respect to such claims, and (z) take all actions necessary in the judgment of the Seller nor any Indemnifying Party Representative for the accomplishment of the foregoing). Seller shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action be bound by all such actions taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties Seller Representative shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible liable to the Seller for any Losses that the Seller error of judgment, or any Indemnifying Party may suffer by reason of 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 or the Escrow Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative except in the performance case of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part misconduct, as finally determined by a court of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration competent jurisdiction. No bond shall be required of the Seller Representative’s duties under any . The Seller Representative Documentmay consult with legal counsel, including the reasonable fees independent public accountants and expenses of any legal counsel retained other experts selected by the Seller Representative. In no event it and shall the Seller Representative in such capacity not be liable hereunder or in connection herewith for any indirectaction taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, punitive, special accountants or consequential damagesexperts. The Seller Representative shall not be liable for have any act done duty to ascertain or omitted under any Seller Representative Document to inquire as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice performance or observance of counsel shall be conclusive evidence any of such good faiththe terms, covenants or conditions of this Agreement or the Escrow Agreement. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on Without limiting the Seller Representative in generality of the foregoing manner. In connection with the performance of its rights and obligations hereunderforegoing, the Seller Representative shall have the right at full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement, and to consent to any time amendment hereof or thereof on behalf of Seller and from time its respective successors and assigns. In all matters relating to time the Escrow Fund, the Seller Representative shall be the only party entitled to select and engage, at assert the reasonable cost and expense rights of the Seller.
(b) This power of attorney is a special power of attorney coupled with an interest and is irrevocable, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelydeath, disability, legal incapacity, bankruptcy, insolvency, dissolution, or cessation of existence of Seller. This power of attorney may be exercised by Seller Representative with the single signature of Seller Representative acting as attorney-in-fact for Seller.
(c) Seller 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 Seller 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) If Seller Representative is authorized to act on behalf of the Seller, 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. 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; 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 dieappoint its successor, become disabled, dissolve, resign or otherwise which successor must be unable or unwilling reasonably acceptable (x) to fulfill its responsibilities as representative Purchaser and agent of (y) the Seller. 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 Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a the successor Seller Representative (as determined shall be selected by the board of directors of the Seller, within two (2) Business Days after such appointment) notify which successor must be reasonably acceptable to Purchaser. The Seller Representative shall have reasonable access to the Purchaser Representative books and records and other information about the Seller and its assets, business and financial condition and the Purchaser in writing reasonable assistance of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” Seller’s officers and employees for purposes of performing its duties and exercising its rights hereunder and under the Escrow Agreement, provided that the Seller Representative shall treat confidentially and not disclose any nonpublic information from or about Seller (except on a need to know basis to individuals who agree to treat such information confidentially) except as appropriate or necessary in any litigation, arbitration or other proceeding by or against it in connection with this AgreementAgreement or the Escrow Agreement or the Transactions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Seller Representative. (a) Each Seller Grouphereby appoints, by delivery of a Letter of Transmittal, on behalf of itself authorizes and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity empowers Seller Representative to act as the Seller Representativerepresentative, as the true and lawful exclusive agent and attorney-in-fact for the benefit of such Persons with full powers of substitution to act Sellers in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amendedconnection with, and to do or refrain from doing all such further acts and thingsfacilitate the consummation of, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under hereby, in each case, which shall include the Seller Representative Documents, including: power and authority:
(i) managing, controlling, defending to execute and settling on behalf of an Indemnifying Party deliver any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance Other Transaction Agreement (with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending modifications or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material changes therein as to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the which Seller Representative, in its reasonable sole discretion, deems shall have consented) and to agree to such amendments or modifications thereto as Seller Representative, in its sole discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and any Other Transaction Agreement as Seller Representative, in its sole discretion, may deem necessary or advisable in desirable;
(iii) to enforce and protect the performance rights and interests of its duties as the Sellers under or relating to this Agreement and any Other Transaction Agreement, and to take any and all actions that Seller Representative believes are necessary or appropriate hereunder for and on behalf of Sellers, including asserting or pursuing any Claim against Parent, Buyer or their Representatives, in each case, to rely the extent such Claims are permitted hereunder, compromising or settling any such Claims, conducting negotiations with Parent, Buyer and their Representatives regarding such Claims and, in connection therewith, to (A) assert or institute any Claim, (B) investigate, defend, contest or litigate any Claim initiated by a Party, its Affiliates or any other Person, or by any federal, state or local Governmental Entity against Seller Representative, any of Sellers and receive process on their advice behalf of any Seller in any such Claim or investigation and counselcompromise or settle on such terms as Seller Representative shall determine to be appropriate, and give receipts, releases and discharges related to, any such Claim or investigation, (C) file any proofs of debt, claims and petitions as Seller Representative may deem advisable or necessary and (D) file and prosecute appeals from any Order rendered in any such Claim or investigation, it being understood that 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;
(iv) to receive or provide any notice or communication hereunder and under any Other Transaction Agreement;
(v) to refrain from enforcing any right of any Seller under or relating to this Agreement or any Other Transaction Agreement; provided, however, that no such failure to act on the part of Seller Representative, except as otherwise provided herein, shall be deemed a waiver of any such right or interest by Seller Representative or Sellers, unless such waiver is made under Section 8.3; and
(vi) incurring to make, execute, acknowledge and paying reasonable costs deliver all such other Contracts, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and expensesother writings, including fees of brokersand, attorneys in general, to do any and accountants incurred pursuant all things and to take any and all action that Seller Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction by this Agreement or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Other Transaction Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on reimbursement from each Seller for such Seller’s Pro Rata Share of Seller Representative’s out-of-pocket fees, costs and expenses incurred in the instructions performance of his duties as Seller Representative under this Agreement or any Other Transaction Agreement. In connection with this Agreement and decisions any Other Transaction Agreement, and in exercising or failing to exercise all or any of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the powers conferred on Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made shall incur no responsibility or liability whatsoever to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, any error in judgment or other than Losses arising from the bad faith, gross negligence act or willful misconduct by the Seller Representative in the performance of its duties under this omission performed or omitted hereunder or any Other Transaction Agreement. From and after the Closing, the Seller Sellers shall indemnify, defend and hold the harmless Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligencelosses, bad faith or willful misconduct on the part of the Seller Representative liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) related to Seller Representative’s execution and delivery of, performance of its covenants and agreements under or the exercise of its rights or duties hereunder and any agreements ancillary hereto, in each case, as such Representative Loss is suffered or incurred. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for required to advance its own funds on behalf of any indirectSeller.
(c) Parent, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith Buyer and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative their Affiliates shall have the right at any time and from time to time rely upon all actions taken or omitted to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the be taken by Seller Representative may reasonably deem necessary pursuant to this Agreement or appropriate from time to time. All of the indemnities, immunities, releases any Other Transaction Agreement and powers granted to the Seller Representative under this Section 9.17 all such actions or omissions shall survive the Closing and continue indefinitelybe legally binding on Sellers.
(d) If the The appointment and grant of power and authority to Seller Representative hereunder (i) is coupled with an interest and shall die, become disabled, dissolve, resign be irrevocable and survive bankruptcy or otherwise be unable or unwilling to fulfill its responsibilities as representative liquidation of any Seller and agent (ii) shall survive the consummation of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreementtransactions contemplated hereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Digital Media Solutions, Inc.), Asset Purchase Agreement (Digital Media Solutions, Inc.)
Seller Representative. (a) Seller GroupBy virtue of the execution of this Agreement by each Seller, by delivery and without further action of a Letter of Transmittalany Seller, on behalf of itself the Sellers will be deemed to have irrevocably constituted and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity appointed Xxxxx Xxxxxxxxxxx as the “Seller Representative, ” (and by execution of this Agreement Xxxxx Xxxxxxxxxxx hereby accepts such appointment) as the true and lawful agent and attorney-in-fact for and on behalf of such Persons Sellers, with full powers power of substitution substitution, to act in the name, place and stead of thereof each Seller with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the taking by Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to and all actions and the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations making of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by any Seller under this Agreement, in each case either (x) on and prior to the Closing, and (y) immediately following the Closing. Such powers shall include the exercise of the power to: (i) give and receive notices and communications under this Agreement; (ii) receive and pay funds under this Agreement, (iii) prepare and deliver documents, certificates and instruments, and give instructions, under this Agreement, (iv) authorize or object to claims for indemnification made by any Buyer Indemnitee under this Agreement; (v) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by any Buyer Indemnitee under this Agreement; (vi) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters specifically delegated to Seller Representative hereunder, in this Agreement; and neither (vii) take all actions necessary or appropriate in the Seller nor any Indemnifying Party shall have any cause good faith judgment of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit accomplishment of the Sellerforegoing; provided, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by that the Seller Representative (shall have no authority to take any action on or prior to the Closing which would bind any Company following the Closing except for a notice under as provided in this Agreement or otherwise consented to in writing by the Buyer. The power of attorney hereby is coupled with an interest and is irrevocable; provided, that the power of attorney granted by this Section 9.17(d) shall, without any further action by any Person, be deemed automatically revoked and of no further effect with respect to any Company immediately following the Closing. The identity of the replacement Seller Representative and the terms of the agency may be changed, and a successor Seller Representative may be appointed, from time to time (including in the event of the death, disability or other incapacity of the Seller Representative)) by the consent of Sellers accounting for at least fifty percent of the Pro Rata Shares, and any such successor will succeed the Seller Representative as Seller Representative under this Agreement. Amounts paid by or on behalf of Buyer to the Seller Representative on behalf of the Sellers shall be treated as received by the Sellers.
(cb) The Seller Representative will not be liable for any act for the Seller on all of the matters set forth in this Agreement in the manner done or omitted hereunder as the Seller Representative believes to be while acting in the best interest of the Seller, but the Seller Representative will good faith and not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, in a manner constituting gross negligence or willful misconduct by misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. Each Seller will jointly and severally indemnify the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably losses incurred without gross negligence, bad faith negligence or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any hereunder.
(c) A decision, act, consent or instruction of the Seller Representative Documentwill constitute a decision of all Sellers and will be final, binding and conclusive upon each Seller, and Buyer, its Affiliates, any other Buyer Indemnitee and any other Person 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, its Affiliates, any other Buyer Indemnitee, and any other Person are hereby relieved from any liability to any Person for any acts done by Seller Representative and any acts done by Buyer, its Affiliates, any other Buyer Indemnitee and any other Person in accordance with any such decision, act, consent or instruction of the Seller Representative in accordance with this Section.
(d) The Representative Expense Fund Amount will be deposited by Buyer in the Representative Expense Fund in accordance with Section 1.4(a). Other than the obligation to make such deposit pursuant to the terms and conditions of this Agreement, Buyer shall have no responsibility, obligation, or liability with respect to the Representative Expense Fund. The Representative Expense Fund shall be held by the Seller Representative as agent and for the benefit of the Sellers in a segregated client account and shall be used for the purpose of pay directly, or reimbursing the Seller Representative for, any expenses incurred in connection with this Agreement and the performance of the Seller Representative’s duties and obligations hereunder, including to pay the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative and accountants incurred in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damagesresolving disputes with Buyer. The Seller Representative is not providing any investment supervision, recommendations or advice and shall not be liable have no responsibility or liability for any act done loss of principal of the Representative Expense Fund other than as a result of gross negligence or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faithmisconduct. The Seller Representative shall be fully protected is not acting as a withholding agent or in relying upon any written notice, demand, certificate or document that it similar capacity in good faith believes to be genuine, including facsimiles or copies thereofconnection with the Representative Expense Fund, and has no Person shall have tax reporting or income distribution obligations. The Sellers will not receive any Liability for relying interest on the Representative Expense Fund and assign to the Seller Representative any such interest. As soon as reasonably determined by the seller Representative that the Representative Expense Fund is no longer required to be withheld, and in any event not later than thirty (30) days after the foregoing manner. In connection with later of (i) the performance date any remaining balance of its rights and obligations hereunderthe Indemnity Holdback is paid out to the Sellers or (ii) the date that the last indemnity claim of a Buyer Indemnitee has been finally resolved, the Seller Representative shall have distribute the right at any time and from time to time to select and engage, at the reasonable cost and expense then- remaining amount of the SellerRepresentative Expense Fund, attorneysif any, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelySellers according to their respective Pro Rata Shares.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Village Farms International, Inc.), Membership Interest Purchase Agreement (Village Farms International, Inc.)
Seller Representative. (a) Each Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes appoints BTO Urban and appoints Xxxx XxxxxxxxFamily Holdings, in acting jointly, to serve (and each Purchaser-Side Party hereby acknowledges that the capacity Seller Representative will serve) as the Seller Representativeexclusive agent, as the true and lawful agent proxy and attorney-in-fact of for such Persons with Seller for all purposes under this Agreement (including full powers of substitution power and authority to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under Seller). Without limiting the terms generality of the foregoing appointment, the Seller Representative is authorized and provisions empowered to execute any and all instruments, certificates or other documents on behalf of this Agreement each Seller, and the Ancillary Documents to do any and all other acts or things on behalf of each Seller, which the Seller Representative is a party may deem necessary or otherwise has rights in such capacity (together with this Agreementadvisable, the “Seller Representative Documents”), as the same or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the Transactions and the performance of all obligations hereunder or under any other Transaction Agreements from time to time amendedand after the date hereof, and to do or refrain from doing all such further acts and things, and to including the exercise of the power to: (i) execute all such any documents on behalf of each Seller, including any amendment to, or waiver under, this Agreement, (ii) give and receive notices and communications to or from any other Person relating to this Agreement or any of the Transactions and other matters contemplated hereby or by any other Transaction Agreement (except to the extent that this Agreement expressly contemplates that any such Personnotice or communication shall be given or received by a Seller individually), if any(iii) engage and employ, on behalf of the Sellers, Representatives (including legal counsel and other professionals) and incur such expenses as the Seller Representative will deem may in its sole discretion determine necessary or appropriate in connection with any the administration of the transactions contemplated under foregoing, at the expense of the Sellers (which shall reimburse the Seller Representative Documentsfor the same), including: (iiv) managingagree to, controllingobject to, defending negotiate, resolve, enter into settlements and settling compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, any dispute between any other Person and any or all of the Sellers, in each case, relating to this Agreement or the Transactions, (v) pay or cause to be paid all expenses incurred or to be incurred by or on behalf of an Indemnifying Party any indemnification claims against any the Sellers in connection with this Agreement and (vi) take all actions necessary or appropriate in the judgment of them under Article VIthe Seller Representative for the accomplishment of the foregoing. Any action taken by the Seller Representative will require the prior written consent of each of BTO Urban and Family Holdings, including controlling, defending, managing, settling except to the extent otherwise agreed by BTO Urban and participating Family Holdings in any Third Party Claim in accordance with Section (a); (ii) acting writing. The Seller Representative shall have the sole and exclusive authority and power to act on behalf of such Person each Seller with respect to the disposition, settlement or other handling of all claims under this Agreement and all rights or obligations arising under this Agreement. Each Seller shall be bound by all actions taken and documents executed by the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (providedin compliance with this Section 12.18 in connection with this Agreement, that and each Purchaser-Side Party shall be entitled to rely on any such action, if material to the rights and obligations of the Seller in the reasonable judgment action or decision of the Seller Representative, provided such action or decision reflects the consent of both BTO Urban and Family Holdings. The Seller Representative shall receive no compensation (other than the expense reimbursement contemplated above) for its services. Notices or communications to or from the Seller Representative shall constitute notice to or from each Seller.
(b) The Seller Representative will be taken in the same manner have no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller will exist with respect to the Seller unless otherwise agreed Representative in its capacity as such. The agencies and proxies created hereunder by each Seller Stockholder who is subject to any disparate treatment the Sellers are coupled with an interest and are therefore irrevocable without the consent of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretionand will survive the death, deems necessary incapacity, bankruptcy, dissolution 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations liquidation of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such PersonSeller. All decisions and actions acts by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall will be binding upon the Seller and its respective successors and assignseach Seller, and neither they nor any other Party shall no Seller will have the right to object, dissent, protest or otherwise contest the same. The provisions Seller Representative is authorized to act on behalf of each Seller in accordance with the terms of this Section 9.17 are irrevocable and coupled 12.18, notwithstanding any dispute or disagreement with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as or among the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)Sellers.
(c) The Seller Representative will act for In performing the Seller on all of the matters set forth functions specified in this Agreement in the manner the Agreement, as Seller Representative believes Representative, neither BTO Urban nor Family Holdings shall be liable to be in the best interest of the Seller, but the Seller Representative will not be responsible to the any Seller for any Losses that errors in judgment, negligence, lack of oversight, breach of duty or otherwise. Each Seller severally (based on the consideration such Seller actually receives (or any Indemnifying Party may suffer by reason of would have received, in the performance by event the Seller Representative of Agreement is terminated prior to the Seller Representative’s duties Closing) under this Agreement), other than Losses arising from the bad faithand not jointly, gross negligence or willful misconduct by the shall indemnify and hold harmless BTO Urban and Family Holdings in their joint capacity as Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably losses, damages, claims and liabilities (including attorneys’ fees and other costs of defending against claims) incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) by them and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damageshereunder. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting is serving in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” capacity solely for purposes of this Agreementadministrative convenience, and is not liable in such capacity or any other capacity for any of the obligations of any Seller-Side Party hereunder, and each Purchaser-Side Party agrees that it will not in any event look to the assets of BTO Urban or Family Holdings, acting in such capacity, for the satisfaction of any obligations to be performed by any Seller-Side Party hereunder.
Appears in 2 contracts
Samples: Transaction Agreement (Replay Acquisition LLC), Transaction Agreement (Replay Acquisition Corp.)
Seller Representative. (a) Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller RepresentativeGEIE, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution Seller’s representative to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions as Representative for all purposes of this Agreement and the Ancillary Documents to which transactions contemplated hereby, with the Seller Representative is a party or otherwise has rights right, in such capacity (together with this Agreementcapacity, the “Seller Representative Documents”)in his discretion, as the same may be from time to time amended, and to do or refrain from doing any and all such further acts and things, things and to execute any and all documents in Seller’s place and stead, in any way which such documents Seller could do if personally present, in connection with this Agreement and the transactions contemplated thereby, including the authority on behalf of such PersonSeller, if anywithout giving notice to such Seller, as the Seller Representative will deem necessary or appropriate in connection with to take any of the transactions contemplated under the Seller Representative Documents, including: following actions:
(i) managing, controlling, defending and settling to accept on such Seller’s behalf of an Indemnifying Party any indemnification claims against any of them amount payable to such Seller under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); this Agreement;
(ii) acting on behalf of such Person under the Escrow Agreement; to negotiate and otherwise deal with Parent, LuxCo or BHN, in all respects;
(iii) terminating, amending or waiving on behalf to accept and give service of such Person any provision of any Seller Representative Document (provided, that any such action, if material process and all other notices and other communications relating to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); this Agreement;
(iv) signing on behalf of such Person any releases or other documents with respect to settle any dispute or remedy arising under any Seller Representative Document; relating to the terms of this Agreement;
(v) employing and obtaining to execute any instrument or document that the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, deems Representative may determine is necessary or advisable desirable in the performance exercise of its duties as the Seller Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller his authority under this Agreement and power-of-attorney; and
(vi) to distribute act in connection with all matters relating to this Agreement and the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Documenttransactions contemplated thereby, including giving the power to employ auditors, attorneys and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementPersons in connection therewith.
(b) Any Seller further agrees, as follows:
(i) Seller recognizes the inherent conflict of interest of GEIE as the Representative and waives any claims with respect thereto;
(ii) the Representative (A) shall not incur any personal liability for acting in such capacity if in doing so it acts upon advice of counsel or otherwise acts in good faith, (B) shall not incur any personal liability for acting in such capacity in the absence of its willful misconduct, (C) may act upon any instrument or signature believed by it to be genuine and may assume that any Person purporting to give any notice or instruction under this Agreement or under any other Personrelated agreement or document believed by it to be authorized has been authorized to do so (D) shall not be responsible for the investment of any payments received from Parent for the benefit of Seller, including the Purchaser and (E) shall be promptly reimbursed by Seller, pro rata for out-of-pocket expenses incurred by it in its capacity of Representative, and such expenses shall first be satisfied from any payment paid by Parent and received by the PurchaserRepresentative for the benefit of Seller, prior to distribution of such payments to Seller; and
(iii) If GEIE is unable to serve or resigns as the Company Representative, Seller may appoint from among their ranks a substitute Representative to replace GEIE which Representative shall have all the powers and authority granted to GEIE by this Section 13.15. Parent, LuxCo and BHN shall accept such substitute Representative without objection; provided, however, that GEIE shall continue to serve as the Representative until such substitute Representative has been appointed by Seller.
(c) At and after Closing, Parent, LuxCo and BHN shall be entitled to deal exclusively with Representative on all matters relating to this Agreement and the Indemnified Parties transactions contemplated hereby involving Seller, or any of them, and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement without further evidence of any indemnification claims by an Indemnified Party pursuant to Article VI, (iikind whatsoever) on any payment instructions provided statements made by the Seller Representative or (iii) documents executed or purported to be executed on behalf of any Seller by the Representative, and on any other actions required action taken or permitted purported to be taken by the Seller Representative hereunder, and neither the Seller nor on behalf of any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representativeappropriate communication or delivery to Seller. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. [The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes remainder of this Agreement.page intentionally left blank; signature pages to follow]
Appears in 2 contracts
Samples: Purchase Agreement (Prime Acquisition Corp), Purchase Agreement (Prime Acquisition Corp)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxYxxxxxxxx Xxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.15; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto Parties or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.14 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pono Capital Two, Inc.), Merger Agreement (Pono Capital Two, Inc.)
Seller Representative. (a) By virtue of its execution of this Agreement, each Seller Group, by delivery of a Letter of Transmittal, on behalf of itself Party designates and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, Representative as the true and lawful such Seller Party’s agent and attorney-in-fact of such Persons with full powers of substitution to act in for the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions following purposes of this Agreement with the full power and the Ancillary Documents to which the authority on such Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, includingParty’s behalf: (i) managingto take all actions contemplated to be taken by the Seller Representative as set forth in the provisions of this Agreement, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminatingto negotiate, amending or waiving on behalf of such Person any provision of any Seller Representative Document (providedsettle, that any such action, if material to the rights compromise and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving handle all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an indemnification made by any Indemnified Party pursuant to Article VISection 11.1, with the sole exception of any indemnification to be provided by Eager Corp (which shall only be negotiated, settled, compromised or otherwise handled by Eager Corp, it being agreed that only Eager Corp shall have the authority to negotiate, settle or compromise any claim for indemnification with respect to which Eager Corp has any liability). All decisions within the scope of the preceding sentence by Seller Representative shall be binding upon the each Seller and its respective successors and assignsParty (other than Eager Corp solely with respect to clause (ii) thereof), and neither they nor any other no such Seller Party shall have the any right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other PersonThe Seller Representative may delegate its authority as the Seller Representative to any one of the Seller Parties (or their Affiliates) for a fixed or indeterminate period of time upon not fewer than five (5) Business Days’ prior written notice to the Buyer in accordance with Section 12.10. Each successor Seller Representative has all of the power, including authority, rights and privileges conferred by this Agreement upon the Purchaser original Seller Representative, the Purchaser, the Company and the Indemnified term “Seller Representative” as used in this Agreement includes any successor Seller Representative.
(c) A decision, act, consent or instruction of the Seller Representative acting on behalf of the Seller Parties in accordance with the provisions hereof (including, for the avoidance of doubt, clause (ii) of Section 12.14(a)) constitutes a decision of all such Seller Parties (except where the context otherwise requires) and is final, binding and conclusive upon such Seller Parties, and the Buyer Parties and the Indemnifying Parties any Indemnified Party may conclusively and absolutely rely, without inquiry, rely upon any actions such decision, act, consent or instruction of the Seller Representative as being the acts decision, act, consent or instruction of such Seller Parties. The Buyer Indemnitees are hereby relieved from, and the Seller under Parties (other than Eager Corp) shall indemnify and hold the Buyer Indemnitees harmless from, any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled liability to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party Person for any action taken acts done by any of them in reliance upon the instructions accordance with such decision, act, consent or decisions instruction of the Seller Representative. The Purchaser RepresentativeBuyer Indemnitees may for all purposes of this Agreement treat every notice, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller payment or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made action directed to the Seller Representative for the benefit of the Selleras if such notice, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices payment or other communications required action had been directed to be made or delivered by the such Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)Party.
(cd) The Seller Representative will act for the Seller on all of the matters set forth in this Agreement in the manner the Seller Representative believes have no liability to be in the best interest of the Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses Party on behalf of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable whom it is acting for any act done or omitted under any Seller Representative Document this Agreement as the Seller Representative while acting in good faith and without willful misconduct or gross negligencenot in a manner constituting wanton misconduct, and any act done or omitted pursuant to the advice of counsel shall will be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, Parties (other than Eager Corp) will severally indemnify and no Person shall have any Liability for relying on hold harmless the Seller Representative in the foregoing manner. In connection with the performance of its rights from and obligations hereunder, the Seller Representative shall have the right at against any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as Losses the Seller Representative may reasonably deem necessary suffer as a result of any such action or appropriate from time to time. All omission.
(e) This appointment and grant of power and authority by the indemnities, immunities, releases and powers granted Seller Parties to the Seller Representative under pursuant to this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die12.14 is coupled with an interest, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent is in consideration of the Sellermutual covenants made in this Agreement, then is irrevocable and may not be terminated by the act of any Seller shallParty or by operation of law, within ten (10) days after such deathwhether upon the death or incapacity of any Seller Party, disability, dissolution, resignation or by the occurrence of any other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Reliant Software, Inc.), Merger Agreement (Community Choice Financial Inc.)
Seller Representative. (a) Seller GroupEach Xxx Subsidiary, by delivery of a Letter of Transmittalexecuting this Agreement, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxREC and its successors, in the capacity acting as the Seller Representativehereinafter provided, as the true and lawful agent and such appointing Person’s attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under in connection with the terms authority granted to REC pursuant to this Section 13.15, and provisions of acknowledges that such appointment is coupled with an interest.
(b) Each Xxx Subsidiary, by the appointment described in Section 13.15(a), (i) authorizes REC subsequent to the Execution Date (A) to give and receive written consents, reports, notices and communications to or from Buyer relating to this Agreement, the transactions contemplated by this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative other Transaction Documents, including: (iB) managing, controlling, defending and settling to act on such appointing Person’s behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, all matters affecting such appointing Person 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative DocumentAgreement, including giving and receiving all notices and communications hereunder to be given or thereunder received with respect to any such matters, and (C) to negotiate, compromise and resolve any dispute that may arise under this Agreement; provided, however, that in each of clauses (A) through (C) preceding, REC will not have the authority to execute any agreements or documents (other than consents, reports, notices and communications) on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assignseach Xxx Subsidiary, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted agrees to be taken bound by the Seller Representative hereunder, all agreements and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken determinations made by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability documents executed and delivered by REC pursuant to the Seller or any Indemnifying Party for any allocation or distribution authority granted to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)REC hereunder.
(c) The Seller Representative will act for the Seller 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 SellerEach Xxx Subsidiary, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative execution of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of expressly acknowledges and agrees that (i) REC is authorized to act on its duties under behalf with respect to this Agreement. From , notwithstanding any dispute or disagreement between such appointing Person and after the ClosingREC, the Seller shall indemnifyand (ii) Buyer will be entitled to solely interact with, defend and hold the Seller Representative harmless from and against rely on any and all Losses reasonably incurred actions taken by, REC under this Agreement without gross negligenceany liability to, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of obligation to inquire of, such appointing Person. Any notice or in connection with the acceptance communication given or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligencereceived by, and any decision, action, failure to act done within a designated period of time, agreement, consent, settlement, resolution or omitted pursuant to instruction of, REC that is within the advice scope of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative REC’s authority under this Section 9.17 shall survive the Closing 13.15 will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of Sellers and continue indefinitelywill be final, binding and conclusive upon such appointing Person. Buyer will be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or interaction of, such appointing Person and Sellers.
(d) If the Each Seller and Seller Representative shall dieis, become disabledand hereby agrees to be, dissolvejointly and severally liable to Buyer with respect to the representations, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative warranties and agent covenants of the Seller, then each Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser set forth herein and/or in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreementeach Transaction Document.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Rex Energy Corp)
Seller Representative. (a) Each Seller Group, (by virtue of its execution and delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, this Agreement) hereby irrevocably constitutes and appoints Xxxxxx X. Xxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact fact, with full power of substitution and re-substitution, as the "Seller Representative" for and on behalf of such Persons Seller, to, in accordance with full powers this Agreement and the Power of substitution Attorney: (i) serve as custodian of the Purchased Securities (as contemplated by Section 6.8); (ii) give and receive payments, notices and communications hereunder and under the Seller Closing Documents and any of the other agreements or instruments contemplated hereby; (iii) authorize any and all actions on behalf of the Sellers related to act in the namepayment or allocation of the Holdback Amount and the Contingent Payment, place (iv) agree to, negotiate, enter into settlements and stead compromises of, and comply with orders of thereof courts with respect to the performance on behalf payment of Contingent Payment, and (v) take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing or implementation of any provision of this Agreement or the Power of Attorney for which the Seller Representative is authorized hereby, thereby or otherwise.
(b) A decision, act, consent or instruction of the Seller Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each of the Sellers, and the Buyer and any other Person may rely upon any such decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of each Seller. The Buyer and any other Person (except any Seller) are hereby relieved from any liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Seller Representative.
(c) In the event that the Seller Representative is unable or unwilling to serve as such, the Sellers shall, within five (5) business days following notice of such Person under inability or unwillingness, appoint a successor Seller Representative, which person shall be a resident of the United States of America, in accordance with the Power of Attorney.
(d) The Seller Representative shall not be liable for any act done or omitted hereunder as the Seller Representative unless it is proved by clear and convincing evidence that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to Sellers or the Put/Call Holders or undertaken with reckless disregard to the best interests of the Sellers or Put/Call Holders. Except as provided in this Section 12.4(d), the Sellers and the Put/Call Holders (as provided in Section 9(d) of the Put and Call Agreement) shall, severally and pro rata to the number of shares of the capital stock of the Company to be sold or subject to sale by them to the Buyer pursuant to the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Put and Call Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s 's duties under any Seller Representative Documenthereunder, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Jarden Corp), Securities Purchase Agreement (Jarden Corp)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxChuanliu Ni, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party Indemnitor any indemnification claims by or against any of them under Article VIVII, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)7.4; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) making on behalf of such Person any determinations and taking all actions on their behalf relating to the determination of the Adjustment Amount and the adjustment to the number of Exchange Shares under Section 1.5 and any disputes with respect thereto; (iv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) 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; (vivii) 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 indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party other Indemnitee relating to the defense or settlement of any indemnification claims for which an Indemnifying Party Indemnitor may be required to indemnify an Indemnified Party Indemnitee pursuant to Article VIVII, shall be binding upon the Seller Sellers and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company Company, the Indemnitees and the Indemnified Parties and the Indemnifying Parties Indemnitors may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party Indemnitee and Indemnifying Party Indemnitor shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party Indemnitee pursuant to Article VIVII, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party other Indemnitor shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party Indemnitee for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties Indemnitees shall not have any Liability to the any Seller or any Indemnifying Party other Indemnitor for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d11.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any Indemnifying Party other Indemnitor may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time, but the Seller Representative will not be entitled to any fee, commission or other compensation for the performance of its services hereunder. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder and each holder of an Earnout Warrant, by delivery of a Letter of TransmittalTransmittal and approval of the Merger and this Agreement, each holder of Company Options in accordance with the terms of the Company Equity Plan, as applicable, on behalf of itself and its successors and assigns, and without any further action of any of the Company Security Holders or the Company, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxFortis Advisors LLC, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the other Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with determinations relating to the Earnout Statement pursuant to Section (a)1.16; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Security Holders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Security Holders unless otherwise agreed by each Seller Stockholder Company Security Holder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expensesexpenses (on behalf of the Company Security Holders), including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; and (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Company Security Holders, except as expressly provided in the Seller Representative Documents, and for purposes of clarity, there are no obligations of the Seller Representative in any Ancillary Document, schedule, exhibit or the Company Disclosure Schedules, except as expressly set forth in any of the foregoing which is executed and delivered by the Seller Representative. All decisions and actions by the Seller Representative, including any agreement between Representative under the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, Documents shall be binding upon the Seller each Company Security Holder and its their respective successors and assignsassigns as if expressly confirmed and ratified in writing by such Company Security Holder, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15, and the powers, immunities and right to indemnification granted to the Seller Representative Group hereunder: (i) are irrevocable and coupled with an interestinterest and shall survive the death, incompetence, bankruptcy or liquidation of any Company Security Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Security Holder of the whole or any fraction of his, her or its interest in the Earnout Shares. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Security Holders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Security Holder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Security Holder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller Company Security Holders under any Seller Representative Document shall be made to the Seller Representative for the benefit of the SellerCompany Security Holders, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller Company Security Holders with respect thereto. All notices or other communications required to be made or delivered by the Seller Company Security Holders shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(c) of the replacement of the Seller Representative). The Seller Representative shall be entitled to: (i) rely upon any signature believed by it to be genuine, and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Security Holder or other party.
(c) Certain Company Security Holders 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 the Seller Representative Documents (such Company Security Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative will act for the Seller Company Security Holders on all of the matters set forth in this Agreement the Seller Representative Documents in the manner the Seller Representative believes to be in the best interest of the SellerCompany Security Holders, but neither the Seller Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Seller Representative Group”), will not be responsible to the Seller Company Security Holders for any Losses losses that the Seller or any Indemnifying Party Company Security Holder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreementthe Seller Representative Documents, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreementthe Seller Representative Documents. From and after the Closing, the Seller Company Security Holders shall jointly and severally indemnify, defend and hold the Seller Representative Group harmless from and against any and all Losses losses, claims, damages, liabilities, fees, costs, expenses, judgments, fines or amounts paid in settlement (collectively, the “Seller Representative Expenses”) reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Seller RepresentativeRepresentative and in connection with seeking recovery from insurers. Such Seller Representative Expenses may be recovered directly from the Company Security Holders. The Company Security Holders 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 the Seller Representative Documents or the transactions contemplated 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. In no event shall the Seller Representative Group in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative Group shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Security Holders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 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 Earnout Escrow Agreement continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Security Holders, then Seller the Company Security Holders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Security Holders holding in the aggregate a Fully Diluted Pro Rata Share in excess of fifty percent (50%), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Xxxxxx Xxxxx in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Pubco and the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, Pubco, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, Pubco, the Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, Pubco, the Purchaser, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative Representative, Pubco and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Americas Technology Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxCxxxxxxxxxx Xxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.12; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxSxxxxxx Xxxxxxxxxxx, in the capacity as the of Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assigns, each Seller hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxxx Xx (in such capacity, in the capacity as the “Seller Representative, ”) as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative other Transaction Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Seller Representative other Transaction Documents, including: (i) managingact for the Sellers with respect to all indemnification matters referred to in this Agreement, controlling, defending and settling including the right to compromise on behalf of an Indemnifying Party the Sellers any indemnification claims claim made by or against any of them under Article VIthe Sellers, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)if any; (ii) acting on behalf of such Person under act for the Escrow AgreementSellers with respect to all post-Closing matters; (iii) terminatingterminate, amending amend or waiving on behalf of such Person waive any provision of any Seller Representative Document (this Agreement; provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to all of the Seller Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable his or her sole discretion, deems necessary or advisable in the performance of its his or her duties as the Seller Representative and to rely on their advice and counsel; (viv) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated herebyTransactions, and any other reasonable fees and expenses allocable or in any way relating to such transaction Transactions or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all sign any releases or any portion of the consideration provided other documents with respect to the Seller and dispute or remedy arising under this Agreement and to distribute or the same to the Sellerother Transaction Documents; and (viiix) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in his or her sole discretion relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any Seller could do if personally present and acting. The Seller Representative xxxxxx accepts its his or her appointment and authorization as the Seller Representative under this Agreement.
(b) Any The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable, and any other Person, including the Purchaser Representative, the Purchaser, the Fresh2, any Group Company and the any other Purchaser Indemnified Parties and the Indemnifying Parties Parties, may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Seller Representative Documentsother Transaction Document. The Each Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Purchaser Indemnified Party pursuant to Article VISection 7 hereof, (ii) any payment instructions provided by the Seller Representative Representative, or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Indemnified Party shall have any cause of action against the any Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them a Purchaser Indemnified Party in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the any Seller for any Losses loss or damage that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the such Seller Representative’s duties under this Agreement, other than Losses loss or damage arising from the bad faithfraud, gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative’s duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall indemnify, defend severally agree to indemnify and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the fraud, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done the performance of his or omitted under any Seller Representative Document her services hereunder, but will be entitled to the payment from Sellers of all his or her expenses incurred as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its his or her responsibilities as representative and agent of the SellerXxxxxxx, then Seller Sellers shall, within ten (10) days after such death, death or disability, dissolution, resignation or other event, appoint a successor Seller Representative agent and, promptly thereafter (as determined by the board of directors of the Seller, but in any event within two (2) Business Days after such appointment) ), shall notify the Purchaser Representative and the Purchaser Fresh2 in writing of the identity of such successor. Any such successor shall be appointed by the written consent of the Sellers holding a majority of the Pro Rata Share held by all Sellers, and any successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
(e) All notices or other communications required to be made or delivered by the Purchaser or Fresh2 to a Seller shall be made to the Seller Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of the Purchaser to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Seller Representative (except for a notice under Section 8.3(d) of the replacement of the Seller Representative).
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Sxxxx Xxxxxxxx in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement1.13;; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.16 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Artemis Strategic Investment Corp)
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalEach Company Shareholder, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxLoo See Yxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Transaction Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)2.7; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Parent Representative, the Purchaser, Parent and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser Parent Representative, the Purchaser, Parent and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Shareholder shall have any cause of action against the Purchaser Parent Representative, the PurchaserParent, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Parent Representative, the PurchaserParent, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Shareholder for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties Parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d11.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses losses that the Seller or any Indemnifying Party Company Shareholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Parent Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Technology & Telecommunication Acquisition Corp)
Seller Representative. (a) Seller GroupEach Seller, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxHxxxxx Xxxxxxxxxx, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) bringing, managing, controlling, defending and settling on behalf of an Indemnifying Party a Seller Indemnitee or Seller Indemnitor any indemnification claims against by or against, as applicable, any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)6.4; (ii) controlling and making any determinations with respect to the post-Closing Merger Consideration adjustments under Section 1.15; (iii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser Purchaser, Pubco or any Indemnified Party other Indemnitor or Indemnitee relating to the defense or settlement of any claims for which an Indemnifying Party Indemnitor may be required to indemnify an Indemnified Party Indemnitee pursuant to Article VI, shall be binding upon the each Seller, Seller Indemnitee and its Seller Indemnitor and their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Pubco, Purchaser, the Company and the Indemnified Parties Indemnitees and the Indemnifying Parties Indemnitors may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Sellers, the Seller under Indemnitors and Sellers Indemnitees hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Pubco, Purchaser, the Company and each Indemnified Party Indemnitee and Indemnifying Party Indemnitor shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement by a Seller Indemnitee or Seller Indemnitor of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment payment, issuance or delivery instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party Seller Indemnitee or Seller Indemnitor shall have any cause of action against the Purchaser Representative, the Pubco, Purchaser, the Company or any other Indemnified Party Indemnitor or Indemnitee for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Pubco, Purchaser, the Company and the other Indemnified Parties Purchaser Indemnitees shall not have any Liability to the any Seller, Seller Indemnitee or any Indemnifying Party Seller Indemnitor for any allocation or distribution to among the Sellers, the Seller Indemnitees or the Sellers Indemnitors by the Seller Representative of payments or issuances made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller, Seller Indemnitee or Seller Indemnitor under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, Seller Indemnitee or Seller Indemnitor and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller, Seller Indemnitee or Seller Indemnitor with respect thereto. All notices or other communications required to be made or delivered by the a Seller, Seller Indemnitee or Seller Indemnitor shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Sellers, Seller Indemnitees and Seller Indemnitors on all of the matters set forth in this Agreement in the manner the Seller Representative believes to be in the their best interest of the Sellerinterests, but the Seller Representative will not be responsible to the Sellers, the Seller Indemnitees or the Seller Indemnitors for any Losses that the Sellers or other Seller Indemnitees or any Indemnifying Party Seller Indemnitors may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers, by delivery of Letters of Transmittal, will jointly and after the Closing, the Seller shall severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement or any Seller Representative Ancillary Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative, except for any liability arising out of the bad faith, gross negligence or willful misconduct of the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers or other Seller Indemnitees or Seller Indemnitors, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative Representative, Pubco and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assigns, each Seller hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, Representative as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Seller Representative Ancillary Documents, including: (i) managing, controlling, defending and settling on behalf agree upon or compromise any matter related to the calculation of an Indemnifying Party any indemnification claims against any of them adjustments to the Purchase Consideration under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)this Agreement; (ii) acting on behalf direct the distribution of such Person under the Escrow AgreementPurchase Consideration among Sellers; (iii) terminatingact for Sellers with respect to all indemnification matters referred to in this Agreement, amending or waiving including the right to compromise on behalf of such Person Sellers any indemnification claim made by or against Sellers, if any; (iv) act for Sellers with respect to all post-Closing matters; (v) terminate, amend or waive any provision of any Seller Representative Document (this Agreement; provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivvi) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable his or her sole discretion, deems necessary or advisable in the performance of its his or her duties as the Seller Representative and to rely on their advice and counsel; (vivii) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving receive all or any portion of the consideration provided to the Seller under this Agreement Purchase Consideration and to distribute the same to Sellers pro rata in proportion to their ownership interests; (ix) sign any releases or other documents with respect to and dispute or remedy arising under this Agreement or the SellerAncillary Documents; and (viiix) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in his or her sole discretion relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any Seller could do if personally present and acting. The Seller Representative xxxxxx hereby accepts its his or her appointment and authorization as the Seller Representative under this Agreement.
(b) Any The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable, and any other Person, including the Purchaser Representative, the PurchaserBuyer, the Company and the any other Buyer Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Seller Representative DocumentsAncillary Document to which it they are a party. The Purchaser Representative, the Purchaser, the Company and each Each Buyer Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Buyer Indemnified Party pursuant to Article VIARTICLE VI hereof, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Indemnified Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Buyer Indemnified Party for any action taken by any of them a Buyer Indemnified Party in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other No Buyer Indemnified Parties Party shall not have any Liability liability to the Seller or any Indemnifying Party Sellers for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses loss or damage that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the such Seller Representative’s 's duties under this Agreement, other than Losses loss or damage arising from the bad faithfraud, gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative's duties under this Agreement. From Sellers do hereby jointly and after the Closing, the Seller shall indemnify, defend severally agree to indemnify and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s 's duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the fraud, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done the performance of his or omitted under any Seller Representative Document her services hereunder, but will be entitled to the payment from the Sellers of all his or her expenses incurred as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its his or her responsibilities as representative and agent of the SellerSellers, then Seller Sellers shall, within ten (10) days after such death, death or disability, dissolution, resignation or other event, appoint a successor Seller Representative agent and, promptly thereafter (as determined by the board of directors of the Seller, but in any event within two (2) Business Days after such appointment) ), shall notify the Purchaser Representative and the Purchaser Buyer in writing of the identity of such successor. Any such successor shall be appointed by the written consent of Sellers, and any successor so appointed shall become the “"Seller Representative” " for purposes of this Agreement. With respect to the preceding sentence, should any Seller withhold its consent, the appointed Seller Representative shall continue to represent the remaining Sellers who consented to his appointment.
(e) All notices or other communications required to be made or delivered by Buyer to a Seller shall be made to the Seller Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of Buyer to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Seller Representative (except for a notice under Section 7.14(d) of the replacement of the Seller Representative).
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxx X. Xxxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.13; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closingtransaction; (viivi) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative and the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach of the Sellers, by the execution and delivery of a Letter of Transmittal, on behalf of itself and its successors and assignsthis Agreement, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as appoint the Seller RepresentativeRepresentative as such Seller’s representative, as the true and lawful agent and attorney-in-fact of such Persons and agent, with full powers power of substitution to act in the name, place and stead of thereof with respect such Seller, to the performance act on behalf of such Person under the terms and provisions Seller in any amendment of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with Action or dispute involving this Agreement, the “Seller Representative including defending, negotiating, settling or otherwise dealing with claims under Section 1.4 or Article IX hereof or under any other Transaction Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if anydocuments, as the Seller Representative will shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated under by this Agreement, including the Seller Representative Documents, includingpower to: (i) managing, controlling, defending and settling on behalf agree upon or compromise any matter related to the calculation of an Indemnifying Party any indemnification claims against any of them adjustments to the purchase price provided under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)this Agreement; (ii) acting on behalf direct the distribution of such Person under the Escrow Agreementpayments to Sellers; (iii) terminatingact for the Sellers with respect to all indemnification matters referred to in this Agreement, amending or waiving including the right to compromise on behalf of such Person the Sellers any indemnification claim made by or against the Sellers, if any, and provide instructions to the Escrow Agent with respect to the funds in the Escrow Accounts; (iv) act for the Sellers with respect to all post-Closing matters; (v) terminate, amend, or waive any provision of this Agreement or any Seller Representative Document (provided, other Transaction Document; provided that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to all of the Seller Sellers unless otherwise agreed by each Seller Stockholder of the Sellers who is subject to any disparate treatment of a potentially material and adverse nature); (ivvi) signing on behalf of such Person any releases or 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 respect to the consummation of the transactions contemplated by this Agreement or any dispute or remedy arising under any Seller Representative other Transaction Document; (vvii) employing to give and obtaining receive all notices and communications to be given or received under this Agreement or any other Transaction Document and to receive service of process in connection with any disputes or claims hereunder or thereunder; (vii) employ and obtain the advice of legal counsel, accountants accountants, and other professional advisors as the Seller Representative, in its reasonable sole discretion, deems necessary or advisable in the performance of its duties as the Seller Representative and to rely on their advice and counsel; (viix) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viix) receiving receive all or any portion of the consideration provided to the Seller under this Agreement purchase price and to distribute the same pursuant to the Sellerterms of this Agreement; (xi) retain a portion of the purchase price in the Seller Representative Fund as a reserve against the payment of expenses incurred in its capacity as the Seller Representative; (xii) sign any releases or other documents with respect to and dispute or remedy arising under this Agreement or the other Transaction Documents; (xiii) purchase insurance to help cover the Sellers’ obligations under this Agreement or for directors’ and officers’ indemnification to cover claims based on Pre-Closing Periods, and (viiixiv) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Personthe Sellers which the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Sellers could do if personally present and acting. All decisions Each Seller acknowledges and actions agrees that upon execution of this Agreement, any delivery by the Seller RepresentativeRepresentative of any waiver, including any agreement between amendment, agreement, opinion, certificate or other documents executed by the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to decisions made by the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party Seller Representative pursuant to Article VI, this Section 10.16 shall be binding upon the on such Seller as fully as if such Seller had executed and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest delivered such documents or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreementmade such decisions.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its his rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate desirable from time to time. The Seller Representative Fund shall be used to reimburse the Seller Representative for its out-of-pocket fees and expenses and to pay other obligations to or of the Seller Representative in connection with this Section 10.16 or otherwise pursuant to this Agreement, or shall (to the extent not previously distributed by the Seller Representative or subject to a claim by the Seller Representative) be distributed to the Sellers (in accordance with each Seller’s Escrow Share) in such manner, and at such time, as the Seller Representative directs. Upon the delivery of the Seller Representative Amount to the Seller Representative by Buyer, the Sellers, without act by them, shall be treated as having received from Buyer such cash in accordance with their respective Escrow Share of the Seller Representative Amount and then as having deposited such cash into the Seller Representative Fund.
(c) The Seller Representative shall not have any Liability for any act done or omitted hereunder as Seller Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Sellers shall severally (based on their Escrow Share) indemnify the Seller Representative 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 duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs incurred by the Seller Representative. The Seller Representative shall first use the amounts in the Seller Representative Fund before seeking any amounts directly from the Sellers. In the event that any Seller fails to promptly pay any amounts owed to the Seller Representative hereunder (after depletion of the Seller Representative Fund), the Seller Representative is hereby authorized to direct Buyer and the Escrow Agent that all or any portion of any amounts otherwise payable to such Seller under this Agreement or the Escrow Agreement be paid to the Seller Representative in satisfaction of Buyer’s or the Escrow Agent’s obligations to make such payment under the terms of this Agreement and the Escrow Agreement, and to the extent such payment is made to the Seller Representative, such Seller shall have no cause of action against Buyer or the Escrow Agent with respect to such Seller’s failure to receive such payment. In no event shall the Seller Representative be liable hereunder or in connection herewith for any indirect, punitive, exemplary, special, incidental or consequential damages. The Seller Representative shall be fully protected against the Sellers in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof. No bond shall be required of the Seller Representative. The Seller Representative shall not receive any compensation for its services hereunder as Seller Representative.
(d) By its execution of this Agreement, each Seller agrees, in addition to the foregoing, that: (i) Buyer and any other Buyer Indemnified Person shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (A) the settlement of any claims for indemnification by Buyer or such Buyer Indemnified Person pursuant to Article IX hereof, or (B) 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 or such Buyer Indemnified Person for any action taken by Buyer or such Buyer Indemnified Person in reliance upon the instructions or decisions of the Seller Representative; and (ii) all actions, decisions and instructions of the Seller Representative shall be conclusive and binding upon all of the Sellers and no Seller 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, except for gross negligence or bad faith acts by the Seller Representative in connection with the matters described in this Section 10.16.
(e) The Seller Representative may resign (upon no less than ten (10) days prior notice to Buyer, the Escrow Agent and each Seller). In the event of the dissolution or termination of existence (or if an individual, the death or permanent disability) of the then Seller Representative, or if the then-acting Seller Representative shall give notice of intent to resign, Sellers with an aggregate Escrow Share of greater than fifty percent (50%), by written notice to Buyer and the Escrow Agent, shall appoint a successor Seller Representative as soon as practicable, and in no event later than ten (10) days following such dissolution, termination of existence, death, permanent disability or notice of intent to resign. In addition, the individual serving as the Seller Representative may be replaced from time to time by Sellers with an aggregate Escrow Share of at least sixty percent (60%) upon not less than ten (10) days prior written notice to Buyer, the Escrow Agent and each Seller. 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 such successor Seller Representative.
(f) The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable. Each Seller, by executing this Agreement, agrees that such agency, proxy and power of attorney are coupled with an interest, and are therefore irrevocable without the consent of the Seller Representative and shall survive the death, incapacity, or bankruptcy of such Seller. The provisions of this Section 10.16 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Seller. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 Agreement shall survive the Closing and continue indefinitelyClosing.
(dg) If Notwithstanding anything to the contrary contained herein, in the event that any Seller fails to provide proper payment instructions to Buyer or its Affiliates prior to the time that any payment from Buyer (or such Affiliate) is due to such Seller (or if there is a requirement under this Agreement to provide payment instructions in advance of such payment, prior to the time that such instructions are required to be provided), Buyer (or such Affiliate) shall instead make such payment to an account designated by the Seller Representative, who shall hold such amounts for distribution (without interest) to such Seller promptly after the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the receives proper payment instructions from such Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) The Seller Group, by delivery of a Letter of Transmittal, on behalf of itself Representative is hereby constituted and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity appointed as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place for and stead of thereof with respect to the performance on behalf of such Person under each of the other Sellers. 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) interpret the terms and provisions of this Agreement and the Ancillary Documents documents to which be executed and delivered by the Seller Representative is a party 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 otherwise has rights permitted to be given in such capacity (together connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate and enter into settlements and compromises of claims, assume the “Seller Representative Documents”)defense of claims, as the same may be from time and demand arbitration and comply with orders of courts and awards of arbitrators with respect to time amendedsuch claims, and to do or refrain from doing take all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem actions necessary or appropriate in connection with any the judgment of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under for the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations accomplishment of the Seller foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or appropriate in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing 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 2.07, (viii) engage such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants experts and other professional advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties agents and consultants as the Seller Representative shall deem necessary in connection with exercising the powers granted hereunder and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to conclusively rely conclusively on the instructions opinions and decisions advice of such Persons, and (xi) deduct, hold back and/or redirect any funds that may be payable to any Seller pursuant to the Seller Representative as terms of this Agreement or any agreements or documents executed and delivered in connection herewith in order to pay, or establish a reserve for, (i) the settlement of any indemnification claims amount that may be payable by an Indemnified Party pursuant to Article VI, such Seller hereunder or (ii) any payment instructions provided costs, fees, expenses and other liabilities incurred by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with this Agreement or its rights or obligations hereunder.
(b) Such agency may be changed by Cetus from time to time upon not less than five (5) days prior written notice to the acceptance or administration of the Purchaser. The Seller Representative’s duties under , or any successor hereafter appointed, may resign at any time by written notice to the Purchaser. A successor Seller Representative Documentwill be named by Cetus. All power, including the reasonable fees authority, rights and expenses of any legal counsel retained by the Seller Representative. In no event shall privileges conferred in this Agreement to the Seller Representative in such capacity be liable hereunder or in connection herewith for will apply to any indirect, punitive, special or consequential damages. successor Seller Representative.
(c) The Seller Representative shall will not be liable for any act done or omitted under any Seller Representative Document this Agreement as the Seller Representative while acting in good faith and without willful misconduct or gross negligencefaith, and any act done taken or omitted to be taken pursuant to the advice of counsel shall will be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document Purchaser agrees that it will not look to the personal assets of the Seller Representative, acting in good faith believes such capacity, for the satisfaction of any obligations to be genuine, including facsimiles performed by the Company (pre-Closing) or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing mannerSellers. In connection with the performance performing any of its rights duties under this Agreement or any agreements or documents executed and obligations hereunderdelivered in connection herewith, the Seller Representative shall have will not be liable to the right at Sellers for any time and from time Losses that such Person may incur as a result of any act, or failure to time to select and engageact, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to by the Seller Representative under this Section 9.17 shall survive the Closing Agreement or any agreements or documents executed and continue indefinitely.
(d) If delivered in connection herewith, and the Seller Representative shall diewill be indemnified and held harmless by the Sellers for all Losses, become disabled, dissolve, resign except to the extent that the actions or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent omissions of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by were taken or omitted not in good faith. The Seller Representative will at all times be entitled to rely on any directions received from the board of directors Sellers representing a majority of the SellerShares and Options, within two (2collectively. The limitation of liability provisions of this Section 11.01(c) Business Days after such appointment) notify will survive the Purchaser Representative and the Purchaser in writing resignation of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxBxxxxxxx X. Xxxxx, solely in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.13 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Sponsor, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Sponsor, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party Company Stockholders shall have any no cause of action against the Purchaser Representative, the Purchaser, Sponsor, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Sponsor, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d11.13(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.13 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxHxxxxx Gang Hao, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) bringing, managing, controlling, defending and settling on behalf of an a Seller Indemnified Party or Seller Indemnifying Party any indemnification claims by or against any of them under Article VIVIII, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)8.5; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) making on behalf of such Person any determinations and taking all actions on their behalf relating to the Earn-Out Payments under Article II and any disputes with respect thereto; (iv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable sole discretion, deems necessary or advisable in the performance of its duties as the Seller Representative and to rely on their advice and counsel; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser OSN Representative, the Purchaser or any other Indemnified Party or Purchaser Indemnifying Party relating to the defense or settlement of any claims for which an a Seller Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIVIII or for which a Purchaser Indemnifying Party may be required to indemnify a Seller Indemnified Party pursuant to Article VIII, shall be binding upon the Seller Sellers and its their respective successors and assigns, and neither they nor any other Party shall not have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser OSN Representative, the Purchaser, the Company and the other Indemnified Parties and the Purchaser Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of Sellers hereunder or any Ancillary Document to which the Seller under any Seller Representative Documentsis a party. The Purchaser OSN Representative, the Purchaser, the Company and each Indemnified Party and Purchaser Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an Indemnified Party or against a Purchaser Indemnifying Party pursuant to Article VIVIII, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any or other Seller Indemnified Party or Seller Indemnifying Party shall have any cause of action against the Purchaser OSN Representative, the Purchaser, the Company or any other Indemnified Party or Purchaser Indemnifying Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser OSN Representative, the Purchaser, the Company and the other Indemnified Parties and Purchaser Indemnifying Parties shall not have any Liability liability to the any Seller or any other Seller Indemnified Party or Seller Indemnifying Party for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d12.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any other Seller Indemnified Party or Seller Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations services hereunder, but will be entitled to the Seller Representative shall have the right at any time and payment from time to time to select and engage, at the reasonable cost and expense Sellers of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, all its expenses incurred as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate Pro Rata Shares in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser OSN Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Ossen Innovation Co. Ltd.)
Seller Representative. (a) Seller GroupBy voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger or the exchange by delivery the Electing Canadian Resident Shareholders, as applicable, and the execution of a Letter of Transmittal, on behalf of itself each Securityholder shall be deemed to have approved the designation of, and its successors and assignshereby designates, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity Shareholder Representative Services LLC as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Representative (which term shall include any successor appointed in accordance with full powers of substitution to act Section 7.5(c)) for all purposes in the name, place and stead of thereof connection with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents agreements ancillary hereto and to which perform all such acts as the Seller Representative is a party authorized to take under this Agreement or otherwise has rights in such capacity (together with this any Ancillary Agreement, which will include the “Seller Representative Documents”), as the same may be from time to time amended, power and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, includingauthority to: (i) managing, controlling, defending execute and settling on behalf of an Indemnifying Party any indemnification claims against any of them deliver all documents that the Seller Representative is authorized to execute and deliver under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)the Transaction Documents; (ii) acting on behalf of such Person under receive and, if applicable, forward notices and communications to the Escrow Participating Securityholders pursuant to this Agreement; (iii) terminatinggive or agree to, amending or waiving on behalf of such Person all or any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller RepresentativeParticipating Securityholders, will be taken in the same manner with respect to the Seller unless otherwise agreed any and all consents, waivers, amendments or modifications deemed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable sole and absolute discretion, deems to be necessary or advisable appropriate under this Agreement and the execute and deliver any documents that may be necessary or appropriate in connection therewith; (iv) following the performance Closing, amend, modify or supplement this Agreement or any documents to be delivered to Parent pursuant to this Agreement; (v) following the Closing, with respect to Section 3.6 and Section 3.8,
(A) dispute or refrain from disputing, on behalf of its duties as the Seller Representative each Participating Securityholder relative to any amounts to be received by such Participating Securityholder thereunder, (B) negotiate and compromise, on behalf of each such Participating Securityholder, any dispute that may arise thereunder, and exercise or refrain from exercising any remedies available thereunder, (C) execute, on behalf of each such Participating Securityholder, any settlement agreement, release or other document with respect to rely on their advice and counselsuch dispute or remedy; (vi) incurring engage attorneys, accountants, agents or consultants on behalf of the Participating Securityholders in connection with this Agreement or any Ancillary Agreement and paying reasonable costs and expenses, including any fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closingrelated thereto; (vii) receiving make all other elections or any portion of the consideration provided to decisions that the Seller Representative is authorized to make under this Agreement and to distribute the same to the Sellerany Transaction Document; and (viii) otherwise enforcing the rights perform each such act and obligations of any such Persons under any thing whatsoever that Seller Representative Documentmay be or is required to do, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the which Seller Representative and the Purchaser Representativein its sole good faith discretion determines is desirable to do, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon or to carry out the Seller and its respective successors and assigns, and neither they nor any other Party shall have intent of the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementTransaction Documents.
(b) Any other PersonThe grant of authority provided for in this Section 7.5 (i) is coupled with an interest and is being granted, including the Purchaser Representativein part, the Purchaser, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocable and survive the Indemnified Parties death, incompetency, bankruptcy, liquidation, merger or change of control of any Participating Securityholder and the Indemnifying Parties will be binding on any successor thereto and (ii) subject to this Section 7.5, may conclusively and absolutely rely, without inquiry, upon any actions of the be exercised by Seller Representative acting by signing as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to any Participating Securityholder.
(c) If either (i) the settlement a two-thirds (2/3rd) interest of any indemnification claims by an Indemnified Party pursuant Participating Securityholders vote to Article VI, (ii) any payment instructions provided by remove the Seller Representative or (iiiii) the Seller Representative notifies Parent, the Surviving Corporation and the Participating Securityholders that it is unavailable to perform it duties hereunder, then, within three (3) Business Days after receipt of such notice, a majority in interest of Participating Securityholders shall appoint a successor Seller Representative; provided that the Participating Securityholders shall give Parent prompt written notice of such appointment and such appointment shall not be effective until the third (3rd) Business Day after Parent receives such notice. Any references in this Agreement to Seller Representative shall be deemed to include any other actions required or permitted duly appointed successor Seller Representative.
(d) All acts of the Seller Representative hereunder in its capacity as such shall be deemed to be taken acts on behalf of the Participating Securityholders and not of the Seller Representative individually. The Seller Representative shall not have any liability for any amount owed to any Person pursuant to this Agreement or any Transaction Document. The Seller Representative will incur no liability of any kind with respect to any action or omission by the Seller Representative hereunder, and neither in connection with the Seller nor Representative’s services pursuant to this Agreement and any Indemnifying Party agreements ancillary hereto, except in the event of liability directly resulting from the Seller Representative’s gross negligence or willful misconduct. The Seller Representative shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party not be liable for any action taken by any or omission pursuant to the advice of them in reliance upon the instructions or decisions of the Seller Representativecounsel. The Purchaser RepresentativeSeller Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Securityholder.
(e) The Seller Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), the Purchaser, which shall be funded by the Company and the other Indemnified Parties shall not have any Liability at or prior to the Closing. The Seller Representative may use the Expense Fund to pay or any Indemnifying Party be reimbursed for any allocation fees, costs, expenses or distribution to the Seller other obligations incurred by the Seller Representative of payments made to acting in its capacity as such. The Participating Securityholders will not receive any interest or at earnings on the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made Expense Account and irrevocably transfer and assign to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge ownership right that they may otherwise have had in full all notice requirements of the other parties hereto any such interest or thereto to the Seller with respect theretoearnings. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller liable for any Losses that the Seller or any Indemnifying Party may suffer by reason loss of principal of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, Expense Fund other than Losses arising from the bad faith, as a result of its gross negligence or willful misconduct misconduct. The Seller Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing. The Parties agree that the Seller Representative is not acting as a withholding agent or in any similar capacity in connection with the performance Expense Fund. Without limiting the foregoing, each Participating Securityholder shall, to the extent of its duties under this Agreement. From Pro Rata Portion, indemnify and after the Closing, defend the Seller shall indemnify, defend Representative and hold the Seller Representative harmless from and against any and all costs, expenses (including the fees and expenses of its counsel, experts and their respective staffs), Losses reasonably or Liabilities (collectively, “Seller Representative Costs”) incurred without gross negligence, bad faith or willful misconduct on the part of by the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance Seller Representative’s execution and performance of this Agreement and any Ancillary Agreement, in each case as such Seller Representative Cost is suffered or administration incurred; provided that, in the event that any such Seller Representative Cost is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Seller Representative’s duties under any , the Seller Representative Document, including will reimburse the reasonable fees and Participating Securityholders the amount of such indemnified Seller Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expenses of any legal counsel retained incurred by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights duties under this Agreement shall not be the personal obligation of the Seller Representative but shall be payable by and obligations hereunderattributable to the Participating Securityholders based on their respective Pro Rata Portions. Notwithstanding anything to the contrary in this Agreement, the Seller Representative shall have be entitled and is hereby granted the right to set off and deduct any unpaid or non-reimbursed expenses and unsatisfied liabilities incurred by the Seller Representative in connection with the performance of its duties hereunder and under any Ancillary Agreement from (i) the Expense Fund or (ii) any Contingent Merger Consideration Amount at such time as any time and such amounts would otherwise be distributable to the Securityholders, provided that, while this Section 7.5(e) allows the Seller Representative to be paid from the aforementioned sources of funds, this does not relieve the Participating Securityholders from their obligation to promptly pay Seller Representative Costs as they are suffered or incurred, nor does it prevent the Seller Representative from seeking any remedies available to it under applicable Law. The Seller Representative may also from time to time submit invoices to select the Participating Securityholders covering such Seller Representative Costs, which shall be paid by the Participating Securityholders promptly following the receipt thereof based on their respective Pro Rata Portions. Upon the request of any Participating Securityholder, subject to applicable confidentiality obligations, the Seller Representative shall provide such Participating Securityholder with an accounting of all expenses and engage, at liabilities paid by the reasonable cost and expense of Seller Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain Seller Representative for such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, time as the Seller Representative may reasonably deem necessary shall determine in its sole discretion. If the Seller Representative shall determine in its sole discretion to return all or appropriate from time to time. All any portion of the indemnitiesExpense Fund to the Participating Securityholders, immunitiessuch amount shall be distributed to the Participating Securityholders in accordance with their respective Pro Rata Portions as set forth on the Payment Schedule. In no event will the Seller Representative be required to advance its own funds on behalf of the Participating Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, releases and powers granted any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Participating Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Seller Representative under this Section 9.17 shall 7.5. The foregoing indemnities will survive the Closing and continue indefinitely.
(d) If Closing, the resignation or removal of the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes termination of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Seller Representative. (a) By virtue of the adoption and approval of this Agreement, each Seller Groupshall be deemed to have irrevocably agreed that as of the date hereof, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller RepresentativeRepresentative is hereby constituted, appointed and empowered to act, with full power of substitution, as a representative by and for the benefit of Sellers, as the true and lawful exclusive agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of each Seller in connection with, and to facilitate the consummation of, the Transactions, and the power and authority of the Seller Representative shall include the power and authority (i) to consummate ACTIVE 274341277 the Transactions on behalf of the Sellers, (ii) to pay each Seller’s expenses (whether before, on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to the extent applicable, to receive, give receipt of and disburse any funds received hereunder on behalf of or to each Seller, (iv) to hold back from disbursement to all of the Sellers collectively any such Person funds to the extent Seller Representative reasonably determines may be necessary or required under the terms and provisions conditions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same applicable Law or may be from time to time amendedrequired for future expenses or obligations, and to do or refrain from doing all such further acts and things, and (v) to execute all such documents and deliver on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject all documents contemplated herein, any amendment or waiver hereto, and any consents, in each case, with such modifications or changes as to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as which the Seller Representative, in its reasonable sole discretion, deems determines is desirable, (vi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Seller Representative, in its sole and absolute discretion, may consider necessary or advisable proper or convenient in connection with or to carry out the performance Transactions, (vii) to enforce and protect the rights and interests of its duties as the Sellers and to enforce and protect the rights and interest of the Seller Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees arising out of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or under or in any way manner relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and Related Documents, (viii) to refrain from enforcing any right of Sellers or any of them or the Seller Representative arising out of, under or in any manner relating to this Agreement and Related Documents; provided, however, that no such failure to act on the part of the Seller Representative, except as otherwise enforcing provided in this Agreement or in the rights and obligations Related Documents, shall be deemed a waiver of any such Persons under any right or interest by the Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of by such Person. All decisions and actions Sellers unless such waiver is in writing signed by the waiving party or by the Seller Representative, (ix) to negotiate, settle, compromise and otherwise handle all disputes with Purchaser or any other Purchaser Indemnified Party under this Agreement, including disputes regarding any adjustment pursuant to Section 2.12 and any Indemnification Claims made by any Purchaser Indemnified Party, (x) to give and receive notices on behalf of the Sellers, including any agreement between notice of an indemnification claim for which indemnification is sought by the Sellers pursuant to Article 9 and to provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in accordance with this Agreement and (xi) to do each and every act and exercise any and all rights which the Sellers are permitted or required to do or exercise under this Agreement; provided, however, that the Seller Representative shall have no obligation to act on behalf of the Sellers. The Sellers, by accepting the consideration payable to them hereunder, irrevocably grant unto the Seller Representative as said attorney-in-fact and agent full power 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 the Sellers might or could do. Such agency and proxy are coupled with an interest, and are therefore irrevocable without the consent of the Seller Representative, and survive the death, incompetency, bankruptcy or liquidation of any Seller and the Purchaser Representativeconsummation of the Transactions. All actions, decisions and instructions of the Purchaser Seller Representative taken, made or any Indemnified Party relating given pursuant to the defense or settlement of any claims for which an Indemnifying Party may be required authority granted to indemnify an Indemnified Party the Seller Representative pursuant to Article VI, this Section 10.1 shall be conclusive and binding upon the Seller and its respective successors and assignseach Seller, and neither they nor any other Party no Seller shall have the right to object to, dissent from, protest or otherwise contest the same. The terms and conditions of this Agreement are hereby made, and are hereby acknowledged to be, dependent on the determinations and actions that are contemplated or permitted to be made by the Seller Representative pursuant to this Section 10.1, and the rights of all Sellers shall be qualified by and dependent upon such determinations and actions, irrespective of whether the Seller Representative is acting as an agent or power of attorney of such Seller. All actions, ACTIVE 274341277 decisions and instructions of Seller Representative shall be deemed to be facts ascertainable outside this Agreement pursuant to Section 251(b) of the DGCL or under other applicable Law.
(b) All decisions, actions, consents and instructions of the Seller Representative authorized to be made, taken or given pursuant to Section 10.1(a) shall be final and binding upon all the Sellers, and no such Person shall have any right to object, dissent, protest or otherwise contest the same, except for the Willful Breach or gross negligence of the Seller Representative in connection therewith. The provisions Neither the Seller Representative nor any agent employed by the Seller Representative shall incur any liability to any Seller relating to the performance of this Section 9.17 are irrevocable and coupled with an interestits duties as authorized hereunder or the failure to act, except for actions or omissions constituting Willful Breach or gross negligence of the Seller Representative in connection therewith. The Seller Representative xxxxxx accepts shall at all times be entitled to rely on any directions received from the majority (based on Pro Rata Share) of Sellers; provided, however, that the Seller Representative shall not be required to follow any such direction and shall be under no obligation to take any action in its appointment and authorization capacity as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, based upon any actions such direction. The Seller Representative shall not have by reason of this Agreement a fiduciary relationship or other special relationship with any Seller, except in respect of amounts actually received on behalf of such Person. The relationship created between the Seller Representative and any Seller shall not be construed as a joint venture or any form of partnership for purposes of U.S. federal or state law, including federal or state Tax purposes. The Seller Representative shall not be required to make any inquiry concerning either the acts performance or observance of any of the Seller under any Seller Representative Documents. The Purchaser Representativeterms, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions provisions or conditions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)this Agreement.
(c) The Seller Representative will act for the Seller on Sellers shall be bound by all of the matters set forth in this Agreement in the manner the Seller Representative believes to be in the best interest of the Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct actions taken and documents executed by the Seller Representative in connection with this Agreement, the performance Company Documents, and the Escrow Agreement, and Purchaser and the other Purchaser Indemnified Parties shall be entitled to rely on any action or decision of the Seller Representative (and, for the avoidance of doubt, the Sellers shall be responsible to Purchaser and the other Purchaser Indemnified Parties severally (and not jointly and severally) proportionately in accordance with their Pro Rata Shares for any action or inaction of the Seller Representative in its duties capacity as such under this Agreement, any Company Document, or the Escrow Agreement as if the same were taken or not taken by the Sellers under this Agreement, such Company Document, or the Escrow Agreement). From Notices or communications to or from the Seller Representative shall constitute notice to or from each of the Sellers. The Sellers assign to the Seller Representative the right to pursue claims or other causes of action that may arise in the Sellers’ favor in connection with the Transactions.
(d) In the event that the Seller Representative becomes unable to perform the Seller Representative’s responsibilities or resigns from such position, the Sellers shall, within 10 Business Days of such resignation, removal, or vacancy, select another representative to fill such vacancy and after such substituted representative shall (i) be deemed to be the ClosingSeller Representative for all purposes of this Agreement and (ii) exercise the rights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Seller shall indemnifyRepresentative.
(e) The Sellers agree, defend severally (and not jointly and severally) based on their Pro Rata Share, to indemnify the Seller Representative for, and to hold the Seller Representative harmless from and against against, any and all Losses reasonably Loss incurred without Willful Breach or gross negligence, bad faith or willful misconduct negligence on the part of the Seller Representative (in its capacity as such) and Representative, arising out of or in connection with the acceptance Seller Representative’s carrying out ACTIVE 274341277 its duties under this Section 10.1, including costs and expenses of successfully defending the Seller Representative against any claim of liability with respect thereto. The 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 opinion of such counsel. The indemnity obligations of this Section 10.1(e) shall survive the resignation, replacement or administration removal of the Seller Representative’s duties under any Representative or the termination of this Agreement pursuant to Article 8.
(f) Each of Purchaser (on its own behalf and on behalf of the other Purchaser Indemnified Parties), Merger Sub and the Company acknowledges that the Seller Representative Documentis a party to this Agreement solely for purposes of serving as the “Seller Representative” hereunder and no claim shall be brought by or on behalf of Purchaser or any other Purchaser Indemnified Parties or, including after the reasonable fees and expenses Effective Time, the Surviving Company or its Subsidiaries, against the Seller Representative with respect to this Agreement or the agreements or Transactions or any certificate, opinion, instrument or other document delivered hereunder (with it being understood that any covenant or agreement of any legal counsel retained or by the “parties” or “each of the parties” shall not be deemed to require performance by, or be an agreement of, the Seller Representative unless performance by the Seller Representative. In no event Representative is expressly provided for in such covenant or the Seller Representative expressly so agrees in writing, but the Seller Representative shall receive the benefit of any provision of the “parties” or “each of the parties” including with respect to the miscellaneous provisions set forth in this Article 10).
(g) At the Effective Time, Purchaser shall deliver to the Seller Representative the Seller Representative Expense Fund, to be held in trust to cover and reimburse the fees, expenses and other monetary obligations incurred by the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as with the carrying out by the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence its duties under this Section 10.1. Any balance of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative Expense Fund not incurred for such purposes shall be returned to the Sellers in accordance with their respective Pro Rata Share. With respect to the foregoing manner. In connection with the performance of its rights and obligations hereunderTendering Stockholders, the Seller Representative shall have pay such Seller the right at any time and from time to time to select and engage, at the reasonable cost and expense portion of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary Expense Fund attributable to such Seller with respect to the Pro Rata Share of such Seller, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Seller’s Letter of Transmittal. With respect to Tendering Optionholders, the Seller Representative shall pay the aggregate amount, with respect to the Pro Rata Share of such Optionholders, to the Surviving Company and Purchaser shall cause the Surviving Company to pay to such Optionholders, through the Surviving Company’s payroll system (with respect to Optionholders who are employed by the Company Group at the time of such payment) or appropriate from pursuant to the payment instructions set forth in such holder’s Option Surrender Form (with respect to Optionholders who are not employed by the Company Group at the time of such payment), such amounts in accordance with their Pro Rata Share less any required withholding Taxes. In the event that any amount is owed to time. All the Seller Representative, whether for fees, expense reimbursement or indemnification, that is in excess of the indemnitiesSeller Representative Expense Fund, immunitiesthe Seller Representative shall be entitled to be reimbursed by the Sellers proportionately in accordance with each such Person’s Pro Rata Share, releases and powers granted the Sellers agree to so reimburse the Seller Representative. Upon written notice from the Seller Representative to the Sellers as to any such owed amount, including a reasonably detailed description as to such owed amount, the Sellers shall promptly deliver to the Seller Representative under this Section 9.17 shall survive full payment of his, her or ACTIVE 274341277 its Pro Rata Share of such owed amount. The Seller Representative also has the Closing and continue indefinitely.
(d) If right to recover any amount owed to the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of from the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this AgreementEscrow Account.
Appears in 1 contract
Samples: Merger Agreement (Blackbaud Inc)
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Ixx Xxx Xxxx XxxxxxxxXxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to whether the Earnout Milestones have been achieved and Earnout Shares are to be issued under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.13; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser SPAC Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.18 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser SPAC Representative, the PurchaserPubco, SPAC and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser SPAC Representative, the PurchaserPubco, SPAC and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party disputes with respect to the Earnout Milestones pursuant to Article VISection 1.13, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Shareholder shall have any cause of action against the Purchaser SPAC Representative, the PurchaserSPAC, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser SPAC Representative, the PurchaserPubco, SPAC, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Shareholder for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.18(c) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses that the Seller or any Indemnifying Party Company Shareholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.18 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative SPAC Representative, Pubco and the Purchaser SPAC in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Capitalworks Emerging Markets Acquisition Corp)
Seller Representative. (a) Seller Group, by delivery Shareholder Representative Services LLC is hereby appointed as of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity Closing as the Seller Representative, Representative (and each successor appointed in accordance with Section 6.5(c)) and as the true and lawful agent and representative, attorney-in-fact and exclusive agent of such Persons the Security Holders for all purposes in connection with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Transaction Documents and to which perform all such acts as the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, authorized to take under the “Seller Representative Documents”), as the same may be from time to time amended, Transaction Documents and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under Contemplated Transactions, which will include the Seller Representative Documents, includingpower and authority to: (i) managing, controlling, defending execute and settling on behalf of an Indemnifying Party any indemnification claims against any of them deliver all documents that the Seller Representative is authorized to execute and deliver under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)the Transaction Documents; (ii) acting on behalf of such Person under the Escrow Agreementauthorize or require payments to Buyer pursuant to Section 3.4(f) (if any); (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such actionreceive and, if material applicable, forward notices and communications pursuant to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature)this Agreement; (iv) signing give or agree to, on behalf of such Person all or any releases of the Security Holders, any and all consents, waivers, amendments or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as modifications deemed by the Seller Representative, in its reasonable sole and absolute discretion, deems to be necessary or advisable appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) amend, modify or supplement this Agreement or any of the performance instruments to be delivered to Buyer pursuant to this Agreement; (vi) with respect to Section 3.4, (A) dispute or refrain from disputing, on behalf of each Security Holder relative to any amounts to be received by such Security Holder thereunder, (B) negotiate and compromise, on behalf of each such Security Holder, any dispute that may arise thereunder, and exercise or refrain from exercising any remedies available thereunder, (C) execute, on behalf of each such Security Holder, any settlement agreement, release or other document with respect to such dispute or remedy and (D) make any payments or adjustments among any Persons referenced in Article III; (viii) engage attorneys, accountants, agents or consultants in connection with this Agreement or any other agreement contemplated hereby and pay any fees related thereto; (viii) make all other elections or decisions that the Seller Representative is authorized to make under any Transaction Document; and (ix) perform each such act and thing whatsoever that Seller Representative may be or is required to do, or which Seller Representative in its duties sole good faith discretion determines is desirable to do, pursuant to or to carry out the intent of the Transaction Documents, and to amend, modify or supplement any of the foregoing.
(b) The grant of authority provided for in this Section 6.5 (i) is coupled with an interest and is being granted, in part, as an inducement to the Company and Buyer Entities to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy, merger, change of control or liquidation of any Security Holder and will be binding on any successor thereto, and (ii) subject to this Section 6.5, may be exercised by the Seller Representative acting by signing as the Seller Representative and of any Security Holder.
(c) If Seller Representative resigns or is otherwise unavailable to rely on their advice and counsel; perform its duties hereunder, within three (vi3) incurring and paying reasonable costs and expensesBusiness Days of notice of such advice, including fees an alternative Seller Representative reasonably satisfactory to Buyer will be appointed by the Security Holders then holding a majority-in-interest of brokersthe Common Stock (or, attorneys and accountants incurred pursuant if after the Closing, the Security Holders who held a majority-in-interest of the Common Stock immediately prior to the transactions contemplated herebyClosing), and in each case, calculated on a basis as if all shares of Preferred Stock had been converted into shares of Common Stock. Any references in this Agreement to Seller Representative shall be deemed to include any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; duly appointed successor Seller Representative.
(viid) receiving all or any portion All acts of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder in its capacity as such shall be deemed to be acts on behalf of such Person. All decisions the Security Holders and actions by not of the Seller Representative, including any agreement Representative individually. As between the Seller Representative and the Purchaser RepresentativeSecurity Holders, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability for any amount owed to the Seller any Person pursuant to this Agreement or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Ancillary Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable to the Company, Buyer, the Merger Sub or any other Person in its capacity as the Seller Representative, for any Liability of any Security Holder or otherwise, or for anything which it may do or refrain from doing in connection with this Agreement. The Seller Representative shall not be liable to any Security Holder, in his or its capacity as the Seller Representative, for any Liability of any Security Holder or otherwise, or for any error of judgment, or any act done or step taken or omitted under by it in good faith, or for any mistake in fact or Law, or for anything which it may do or refrain from doing in connection with this Agreement, except in the case of the Seller Representative’s gross negligence or willful misconduct as determined in a final and non-appealable judgment of a court of competent jurisdiction. The Seller Representative Document may seek the advice of legal counsel in the event of any dispute or question as to the Seller Representative while acting in good faith construction of any of the provisions of this Agreement or its duties or rights hereunder and without willful misconduct shall not be liable to any Security Holder for any action or gross negligence, and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faithcounsel. The Seller Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Security Holder. Each party hereto shall be fully protected in relying entitled to rely exclusively upon any written noticecommunication given or other action taken by the Seller Representative on behalf of the Security Holders and pursuant to this Agreement, demand, certificate and shall not be liable for any action taken or document that it not taken in good faith believes to be genuine, including facsimiles reliance on a communication or copies thereof, and no Person shall have any Liability for relying on other instruction from the Seller Representative in on behalf of the foregoing mannerSecurity Holders. In connection with the performance of its rights and obligations hereunder, The Security Holders shall indemnify the Seller Representative shall have the right at against any time reasonable, documented, and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenseslosses, 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 suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Seller Representative, the Seller Representative will reimburse the Security Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Seller Representative from (i) the funds in the Reserve Account and (ii) any other funds that become payable to the Security Holders under this Agreement at such time as such amounts would otherwise be distributable to the Security Holders; provided, that while the Seller Representative may reasonably deem necessary be paid from the aforementioned sources of funds, this does not relieve the Security Holders from their obligation to promptly pay such Representative Losses as they are suffered or appropriate from time incurred. In no event will the Seller Representative be required to time. All advance its own funds on behalf of the indemnitiesSecurity Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, immunitiesany restrictions or limitations on liability or indemnification obligations of, releases and powers granted or provisions limiting the recourse against non-parties otherwise applicable to, the Security Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Seller Representative under this Section 9.17 shall hereunder. The foregoing indemnities will survive the Closing and continue indefinitelyClosing, the resignation or removal of the Seller Representative or the termination of this Agreement.
(de) If The Seller Representative is hereby authorized to establish an account for the purposes of holding the Reserve Amount (the “Reserve Account”) and the Seller Representative shall dieuse the Reserve Account in its sole discretion to pay any fees, become disabledcosts, dissolve, resign expenses or other obligations incurred by the Seller Representative acting in its capacity as such. The Security Holders will not receive any interest or earnings on the Reserve Amount and irrevocably transfer and assign to the Seller Representative any ownership right that they may otherwise be unable have had in any such interest or unwilling earnings. The Seller Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to fulfill its responsibilities creditors in the event of bankruptcy. As soon as representative and agent practicable following the completion of the SellerSeller Representative’s responsibilities, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor the Seller Representative (will deliver any remaining balance of the Reserve Amount to the Paying Agent or Company, as determined applicable, for further distribution to the Security Holders. For tax purposes, the Reserve Amount will be treated as having been received and voluntarily set aside by the board Security Holders at the time of directors of the Seller, within two Closing.
(2f) Business Days after such appointment) notify the Purchaser Representative Buyer and the Purchaser in writing Acquired Companies shall have the right to rely upon all actions taken or omitted to be taken by the Seller Representative pursuant to this Agreement and the other Transaction Documents, all of which actions or omissions shall be legally binding upon the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this AgreementSecurity Holders.
Appears in 1 contract
Samples: Merger Agreement (Amedisys Inc)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxDozy Mmobousi, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxRxxx Xxxxxx, in the capacity as the of Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Holder Participant, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will shall deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to whether the Earnout Milestones have been achieved and Earnout Shares are to be issued under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.10; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Holder Participants in the reasonable judgment of the Seller Representative, will shall be taken in the same manner with respect to the Seller all Company Holder Participants unless otherwise agreed by each Seller Stockholder Company Holder Participant who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Holder Participants under this Agreement and to distribute the same to the SellerCompany Holder Participants in accordance with their Company Holder Participant Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and Pubco and/or the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Holder Participant and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including Pubco, the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Holder Participants under any Seller Representative Documents. The Purchaser RepresentativePubco, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party disputes with respect to the Earnout Milestones pursuant to Article VISection 1.10, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Holder Participant shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser RepresentativePubco, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Holder Participant for any allocation or distribution to among the Seller Company Holder Participants by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Holder Participant under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Holder Participant, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Holder Participant with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Holder Participant shall be made by the Seller Representative (except for a notice under Section 9.17(d10.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Holder Participants 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 SellerCompany Holder Participants, but the Seller Representative will shall not be responsible to the Seller Company Holder Participants for any Losses that the Seller or any Indemnifying Party Company Holder Participant may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Holder Participants shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Holder Participants, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.16 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Holder Participants, then Seller the Company Holder Participants shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Holder Participants holding in the aggregate a Company Holder Participant Pro Rata Share in excess of fifty percent (50%)), and, promptly thereafter (but in any event within two (2) Business Days after such appointment) ), notify the Purchaser Representative Pubco and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Mars Acquisition Corp.)
Seller Representative. (a) Seller Group, by delivery Each of a Letter of Transmittal, on behalf of itself and its successors and assigns, the Sellers (other than BTFC) hereby irrevocably constitutes and appoints Xxxx XxxxxxxxBTFC, acting as provided in the capacity this Agreement, as the Seller Representative, Representative to act as the true and lawful agent and its attorney-in-fact of such Persons with full powers of substitution to act and agent in the its name, place and stead of thereof in connection with respect to the performance on behalf of Transactions, and acknowledges that such Person under the terms appointment is coupled with an interest. By executing and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with delivering this Agreement, the “Seller Representative Documents”), hereby (a) accepts its appointment and authorization to act as the same may be from time to time amended, attorney-in-fact and to do or refrain from doing all such further acts and things, and to execute all such documents agent on behalf of the Sellers in accordance with the terms of this Agreement, and (b) agrees to perform its obligations under, and otherwise comply with, this Agreement.
(b) Each Seller (other than BTFC) fully and completely, without restriction:
(i) authorizes and directs the Seller Representative: (i) to designate the Purchase Price Bank Account; (ii) to take any and all actions relating to post-Closing prorations and adjustments on behalf of the Sellers as set forth in this Agreement (including Section 2.06); (iii) to deliver to Purchaser on its behalf any officer’s certificates required pursuant to this Agreement; (iv) to waive any conditions to Closing on behalf of the Sellers pursuant to Section 11.08; (v) to make decisions with respect to termination of this Agreement in accordance with Section 10.01; (vi) to execute, deliver and to accept delivery on its behalf of such Personamendments as may be deemed by the Seller Representative in its sole discretion to be appropriate under this Agreement or any Ancillary Agreements; (vii) to receive notice on its behalf in accordance with Section 11.02; and (viii) to accept delivery, if anyon its behalf, of such agreements, instruments and other documents as the Seller Representative will deem in its sole discretion deems necessary or appropriate in connection with under any of the transactions contemplated under this Agreement or any Ancillary Agreement;
(ii) agrees to be bound by all notices received, by all agreements and determinations made, and by all agreements, instruments and other documents executed and delivered by the Seller Representative Documents, includingunder this Agreement or any Ancillary Agreement;
(iii) authorizes the Seller Representative: (i) managing, controlling, defending and settling on behalf of an Indemnifying to dispute or to refrain from disputing any claim made by any Purchaser Indemnified Party under this Agreement or any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)Ancillary Agreement; (ii) acting to make decisions on its behalf regarding the defense of such Person under Purchaser or third-party suits that may be the Escrow Agreementsubject of indemnification claims, including the full and exclusive power and authority to settle any claim by any Purchaser Indemnified Party or a third-party against any Seller and to institute, pursue, settle or waive any claim by any Seller against either of Purchaser and (following the Closing) the Company; (iii) terminatingto negotiate and compromise any dispute which may arise under, amending to exercise or waiving on behalf of such Person refrain from exercising remedies available under this Agreement or any provision of any Seller Representative Document (providedAncillary Agreement, that any such action, if material and to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person sign any releases or other documents with respect to any such dispute or remedy arising under remedy; (iv) to waive any Seller Representative Documentcondition contained in this Agreement or any Ancillary Agreement; (v) employing to give any and obtaining the advice of legal counsel, accountants all consents under this Agreement or any Ancillary Agreement; and (iv) to give such instructions and to do such other professional advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties things and refrain from doing such other things as the Seller Representative in its sole discretion deems necessary or appropriate to carry out the provisions of this Agreement or any Ancillary Agreement; and
(iv) authorizes and directs the Seller Representative: (i) to receive any payments made to the Sellers or to the Seller Representative on the Sellers’ behalf pursuant to this Agreement or any Ancillary Agreement and (ii) to disburse to the Sellers payments made to the Seller Representative under the this Agreement or any Ancillary Agreement in accordance with their interests.
(c) Each of the Sellers hereby expressly acknowledges and agrees (a) that the Seller Representative is authorized to act on its behalf notwithstanding any dispute or disagreement among the Sellers and (b) that Purchaser and its Affiliates are entitled to rely on their advice any and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions action taken by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementAgreement or any Ancillary Agreement without liability to, or obligation to inquire of, any of the Sellers. Each of the Sellers hereby expressly acknowledges and agrees that Purchaser and its Affiliates and any other Person will be entitled to rely on any and all actions taken (or not taken) by the Seller Representative under this Agreement or any Ancillary Agreement that appear to have been taken in accordance with this Section 11.13 without any duty of inquiry as to the genuineness of the writing or other communication and without any obligation of inquiry of any of the Sellers.
(bd) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions The authorizations of the Seller Representative as the acts of the Seller will be effective until its rights and obligations under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company this Agreement or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser RepresentativeAncillary Agreement, the Purchaseras applicable, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)terminate.
(ce) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible Notwithstanding anything herein to the contrary, BTFC shall have the right in its sole discretion to designate at any time, by delivery of notice thereof to Purchaser, any successor Seller for any Losses that the Seller Representative, who or any Indemnifying Party may suffer by reason of the performance by the Seller Representative which shall succeed to all of the Seller Representative’s duties rights and obligations under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Bally Total Fitness Holding Corp)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter this Agreement, each of Transmittal, the Sellers on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxShareholder Representative Services LLC, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons the Sellers with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person following the Closing under the terms and provisions of this Agreement and the Ancillary Documents Agreements to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonPerson following the Closing, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Agreements to which the Seller Representative Documentsis a party, including, solely in each case, following the Closing: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving making on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material determinations and taking all actions on their behalf relating to the rights and obligations achievement of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner Earnout Shares under Section 2.6 and any disputes with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature)thereto; (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under Section 2.6 of this Agreement or any Ancillary Agreements to which the Seller Representative Documentis a party; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated herebyTransactions, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimTransactions, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viiiv) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Agreements to which the Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Personis a party. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon each of the Seller Company Stockholders and its their respective successors and assigns, and neither they nor any other Party shall not have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser RepresentativeBuyer, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties Company Stockholders may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Company Stockholders hereunder or any Ancillary Agreements to which the Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Buyer and Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller Company nor any Indemnifying Party Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Buyer or Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Buyer and Company and the other Indemnified Parties shall not have any Liability liability to the Seller Company or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Company Stockholder under this Agreement or any Ancillary Agreement to which the Seller under any Seller Representative Document is a party after the Closing shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by a Company Stockholder following the Seller Closing shall be made by the Seller Representative (except for a notice under Section 9.17(d11.14(d)) of the replacement of the Seller Representative).
(c) The Following the Closing, the Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible or liable to Company or the Seller Company Stockholders for any Losses losses that the Seller Company or any Indemnifying Party the Company Stockholders may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.the
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxEON Reality, Inc., in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.15; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Seller, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxx, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party Indemnitor any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)6.4; (ii) controlling and making any determinations with respect to the post-Closing Merger Consideration adjustments under Section 1.16; (iii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser Purchaser, Pubco or any Indemnified Party other Indemnitee relating to the defense or settlement of any claims for which an Indemnifying Party Indemnitor may be required to indemnify an Indemnified Party Indemnitee pursuant to Article VI, shall be binding upon the each Seller and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Pubco, Purchaser, the Company and the Indemnified Parties Indemnitees and the Indemnifying Parties Indemnitors may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Pubco, Purchaser, the Company and each Indemnified Party Indemnitee and Indemnifying Party Indemnitor shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party Indemnitee pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no TABLE OF CONTENTS Seller nor any Indemnifying Party Indemnitor shall have any cause of action against the Purchaser Representative, the Pubco, Purchaser, the Company or any other Indemnified Party Indemnitee for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Pubco, Purchaser, the Company and the other Indemnified Parties Indemnitees shall not have any Liability to the any Seller or any Indemnifying Party other Indemnitor for any allocation or distribution to among the Seller Sellers by the Seller Representative of payments or issuances made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the Seller Sellers or any Indemnifying Party other Indemnitors may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers, by delivery of Letters of Transmittal, will jointly and after the Closing, the Seller shall severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement or any Seller Representative Ancillary Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative, except for any liability arising out of the bad faith, gross negligence or willful misconduct of the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative Representative, Pubco and the Purchaser Xxxxxxxxx in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Integrated Wellness Acquisition Corp)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxxx X. Xxxx, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an a Company Indemnifying Party any indemnification claims against any of them under Article ARTICLE VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)Claim; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated herebyTransactions, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser Buyer or any Buyer Indemnified Party relating to the defense or settlement of any claims for which an a Company Indemnifying Party may be required to indemnify an a Buyer Indemnified Party pursuant to Article ARTICLE VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 7.13 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the PurchaserBuyer, the Company and the Buyer Indemnified Parties and the Company Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the PurchaserBuyer, the Company and each Buyer Indemnified Party and Company Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article ARTICLE VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Company Indemnifying Party shall have any cause of action against the Purchaser Representative, the PurchaserBuyer, the Company or any other Buyer Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the PurchaserBuyer, the Company and the other Buyer Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Company Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d7.13(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Company Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 7.13 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Participating Holder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably irrevocably, as of the Closing, constitutes and appoints Xxxx XxxxxxxxFortis Advisors LLC, in the its capacity as the Seller Representative, as the true and lawful exclusive agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement Agreement, the Seller Representative Engagement Agreement, and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)Claim; (ii) controlling and making any determinations with respect to the post-Closing Merger Consideration adjustments under Section 1.13; (iii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (other than the Seller Representative Engagement Agreement) (provided, that any such action, if material to the rights and obligations of the Seller Participating Holders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Participating Holders unless otherwise agreed by each Seller Stockholder Participating Holder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative DocumentDocument (other than the Seller Representative Engagement Agreement); (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants Seller Representative Expenses incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative DocumentDocument (other than the Seller Representative Engagement Agreement), including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Participating Holders, except as expressly provided herein, in the Escrow Agreement 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 Schedule other than the Seller Representative Documents. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser RepresentativePurchaser, the Purchaser or any Purchaser Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Participating Holder and its their respective successors and assignsassigns as if expressly confirmed and ratified in writing by such Participating Holder, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of powers, immunities and rights to indemnification granted to the Seller Representative in this Section 9.17 9.14: (A) are irrevocable and shall survive the death, incompetence, bankruptcy or liquidation of any Participating Holder and shall be binding on any successor thereto and are coupled with an interestinterest and (ii) shall survive the delivery of an assignment by any Participating Holder of the whole or any fraction of his, her or its interest in the Escrow Property. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Purchaser Indemnified Parties and the Purchaser Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Participating Holders under any Seller Representative DocumentsDocuments (other than the Seller Representative Engagement Agreement). The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Participating Holder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser RepresentativeSeller Representative shall be entitled to: (i) rely upon the Allocation 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 Participating Holder or other party. The Purchaser, the Company and the other Purchaser Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Participating Holder for any allocation or distribution to among the Seller by the Seller Representative Participating Holders of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Participating Holder under any Seller Representative Document (other than the Seller Representative Engagement Agreement) shall be made to the Seller Representative for the benefit of the Sellersuch Participating Holder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Participating Holder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Participating Holder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.14(d) of the replacement of the Seller Representative).
(c) Certain Company Stockholders 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 and the Seller Representative Engagement Agreement (such Company Stockholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Seller Representative will act for the Seller Participating Holders 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 Seller, but Participating Holders. Neither the Seller Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Seller Representative Group”), will not be responsible or liable to the Seller Participating Holders for any Losses that the Seller any Participating Holder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement or the Seller Representative Engagement Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Participating Holders shall jointly and severally indemnify, defend and hold the Seller Representative Group harmless from and against any and all Losses (collectively, the “Seller Representative Expenses”) reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. Such Seller Representative Expenses may be recovered first, from the Representative Reserve Fund, second, from any distribution of the Escrow Property otherwise distributable to the Participating Holders at the time of distribution, and third, directly from the Participating Holders. The Participating Holders 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. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerParticipating Holders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.14 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerParticipating Holders, then Seller the Participating Holders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerParticipating Holders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement. 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 or any termination of this Agreement and the Escrow Agreement.
(e) At the Closing, the Purchaser shall or shall cause the Company to pay to the Seller Representative, on behalf of the Participating Holders, cash to establish the Representative Reserve Fund. The Representative Reserve Fund Amount shall be held by the Seller Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Seller Representative for any Seller Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Seller Representative Engagement Agreement, or (ii) 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 Representative Reserve Fund 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 Representative Reserve Fund and has no tax reporting or income distribution obligations. The Participating Holders will not receive any interest on the Representative Reserve Fund and assign to the Seller Representative any such interest. Subject to Advisory Group approval, the Seller Representative may contribute funds to the Representative Reserve Fund from any consideration otherwise distributable to the Participating Holders. As soon as reasonably determined by the Seller Representative that the Representative Reserve Fund is no longer required to be withheld, the Seller Representative shall cause the remaining Representative Reserve Fund (if any) to be distributed to the Participating Holders, in accordance with their Pro Rata Shares.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxLxxxxxxxxxxx Xxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a6.3(a); (ii) controlling and making any determinations with respect to the achievement of the Earnout Milestones under Section 1.18; (iii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxDxxxxxx X. Xxxxx, solely in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viiiv) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall will be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall will have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 8.2 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including Parent, Sponsor, Merger Sub, Sponsor the Purchaser RepresentativeCompany and, following the Merger, the PurchaserSurviving Company, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser RepresentativeParent, Sponsor, Merger Sub, Sponsor the Company and, following the Merger, the Purchaser, the Surviving Company and each Indemnified Party and Indemnifying Party shall will be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall no Company Shareholder will have any cause of action against the Purchaser RepresentativeParent, the PurchaserSponsor, Merger Sub, Sponsor, the Company or any other Indemnified Party or, following the Merger, the Surviving Company for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser RepresentativeParent, the PurchaserSponsor, Merger Sub, Sponsor, the Company and and, following the other Indemnified Parties shall Merger, the Surviving Company will not have any Liability liability to the Seller or any Indemnifying Party Company Shareholder for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall will be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall will discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller shall a Company Shareholder will be made by the Seller Representative (except for a notice under Section 9.17(d8.2(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses Loss that the Seller or any Indemnifying Party Company Shareholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall Company Shareholders will jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the will Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall will be conclusive evidence of such good faith. The Seller Representative shall will be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall will have any Liability liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall will have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable and documented out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall 8.2 will survive the Closing and continue indefinitely.
(d) If the Seller Representative shall diedies, become becomes disabled, dissolve, resign resigns or otherwise be is unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller shallthe Company Shareholders will, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by vote or written consent of the Company Shareholders holding in the aggregate a majority of all NV Parent Common Shares held by the board of directors of Company Shareholders immediately following the SellerEffective Time), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall will become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Transaction Agreement (Bespoke Capital Acquisition Corp)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxSxxxxxx Xxxxx, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.13; (ii) acting on behalf of such Person under the Escrow Agreement or Purchase Price Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.14 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Pono Capital Corp)
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalEach Seller, on behalf of itself such Seller and its successors such Seller’s successors, heirs and permitted assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, Representative as the such Seller’s true and lawful agent and attorney-in-fact of such Persons and agent, with full powers of substitution to act and resubstitution, in the such Seller’s name, place and stead stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and any Ancillary Agreement and any other agreement, instrument or document in connection with the transactions contemplated hereby or thereby, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with the transactions contemplated by this Agreement as fully to all intents and purposes as such Seller might or could do in person, including the full power and authority: (i) to consummate the transactions to be consummated by such Seller under this Agreement and any Ancillary Agreement and any other agreement, instrument or document in connection with the transactions contemplated hereby or thereby, (ii) to agree to resolution of thereof all claims and disputes hereunder or thereunder, (iii) to retain legal counsel and other professional services, at the expense of such Seller, in connection with the performance by the Seller Representative of this Agreement or any Ancillary Agreement or any other agreement, instrument or document in connection with the transactions contemplated hereby or thereby, (iv) to make any amendments to this Agreement or any Ancillary Agreement or any other agreement, instrument or document in connection with the transactions contemplated hereby or thereby on behalf of such Seller and decisions with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision determination of any Seller Representative Document (providedamounts under Section 2.4, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing to determine whether the conditions to Closing in Article VII have been satisfied and obtaining supervising the advice of legal counselClosing, accountants and other professional advisors including waiving any condition, as determined by the Seller Representative, in its reasonable sole 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 costs and expensesto take any action that may be advisable, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions as determined by the Seller Representative, including in connection with contesting and settling any agreement between and all claims for indemnification pursuant to Article VIII, (vii) to take any action that may be advisable, as determined by the Seller Representative, in its sole discretion, in connection with the termination of this Agreement in accordance with Article IX, (viii) to take any and all actions that may be advisable, as determined by the Seller Representative, in its sole discretion, in connection with the amendment or waiver of any provision of this Agreement in accordance with Section 10.2 or Section 10.3; provided, that the Seller Representative shall not, without the consent of a majority in interest of the Reverence Sellers, amend or waive any provision of this Agreement or any Ancillary Agreement to which any Reverence Seller is a party in a manner that, if so amended or waived without such consent of the Reverence Sellers, would not have qualified as a transaction to which Section 2 of that certain Amended and Restated Institutional Investor Rights Agreement, dated as of August 3, 2017, by and among the Company and the Purchaser RepresentativeSellers party thereto would have applied prior to the date hereof, (ix) to accept notices on behalf of such Seller in accordance with Section 10.4 or relating to any Ancillary Agreement and any other agreement, instrument or document in connection with the Purchaser transactions contemplated hereby or thereby, (x) to execute and deliver, on behalf of such Seller, any and all notices, documents or certificates to be executed by the Sellers, in connection with this Agreement and any Ancillary Agreement and any other agreement, instrument or document in connection with the transactions contemplated hereby or thereby and (xi) to grant any consent, waiver or approval on behalf of such Seller under this Agreement or any Indemnified Party relating to the defense Ancillary Agreement or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have agreement, instrument or document in connection with the right to object, dissent, protest transactions contemplated hereby or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreementthereby.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions The appointment of the Seller Representative as the acts attorney-in-fact for each of the Seller under Sellers as set forth in this Section 10.21 and all authority hereby conferred are granted and conferred in consideration of the interest of each Seller, is therefore coupled with an interest and is and will be irrevocable and will neither be terminated nor otherwise affected by any act of any Seller Representative Documentsor by operation of law, whether by the death, dissolution, liquidation, incapacity or incompetence of such Seller or by the occurrence of any other event. The Purchaser RepresentativeIf, after the Purchaserexecution of this Agreement, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of any Seller dies, dissolves or liquidates or becomes incapacitated or incompetent, the Seller Representative is nevertheless authorized, empowered and directed to act in accordance with this Section 10.21 as to (i) if that death, dissolution, liquidation, incapacity or incompetency had not occurred and regardless of notice thereof. In the settlement of any indemnification claims by an Indemnified Party pursuant to Article VIevent that AP VIII Dakota Holdings, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted L.P. ceases to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellerany reason, each Seller agrees that AP VIII Dakota Holdings, L.P. is solely authorized to irrevocably constitute and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for appoint a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act shall have no liability in its capacity as Seller Representative to Parent or Merger Sub for the Seller on all of the matters set forth in any default under this Agreement in by any Seller or the manner Company. Except for fraud or Willful Breach on its part, the Seller Representative believes shall have no liability to be any Seller under this Agreement, including for any action or omission by the Seller Representative on behalf of any Seller.
(d) In dealing with this Agreement and any Ancillary Agreement and any other agreement, instrument or document in connection with the best interest transactions contemplated hereby or thereby, and in exercising or failing to exercise all or any of the Sellerpowers conferred upon the Seller Representative hereunder, but the Seller Representative will not be responsible assume any, and will incur no, responsibility or liability whatsoever to the any Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any Ancillary Agreement or any other agreement, instrument or document in connection with the performance by transactions contemplated hereby or thereby. Except to the Seller Representative extent directly arising out of the Seller Representative’s duties under this Agreementfraud or Willful Breach, other than Losses arising each Seller, severally in accordance with its respective Consideration Allocation, agrees to indemnify the Seller Representative, its successors, assigns, Representatives and Affiliates (the “Seller Representative Parties”) and to hold the Seller Representative Parties harmless from the bad faith, gross negligence and against and pay any and all losses or willful misconduct expenses incurred by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with (i) the acceptance or administration of the duties as Seller Representative’s duties under any Seller Representative Document, including the reasonable fees costs and expenses of any legal counsel retained incurred by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder defending against any claim or liability in connection herewith for with this Agreement or any indirectAncillary Agreement or any other agreement, punitiveinstrument or document in connection with the transactions contemplated hereby or thereby, special (ii) the material breach by such Seller of its obligations, agreements or consequential damages. The Seller Representative shall covenants required by this Agreement; provided, that (i) the Apollo Sellers shall, solely as between themselves and the other Sellers that are not Reverence Sellers, be jointly and severally liable for any act done or omitted under such material breaches by any Seller Representative Document other than a Reverence Seller, with respect to which no Reverence Seller shall have any liability, and (ii) the Reverence Sellers shall, solely as between themselves be jointly and severally liable for such material breaches that relate to any Reverence Seller, with respect to which no other Seller shall have any liability.
(e) Parent and Merger Sub shall be entitled to rely (without investigation) on and have no liability to any Seller or any other Person for, any action taken by the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on as being taken by the Seller Representative for it and on behalf of each of the Sellers, and fully authorized by each Seller. Each Seller hereby agrees that for any Actions arising under this Agreement or any other agreement entered into in the foregoing manner. In connection with this Agreement, such Seller may be served legal process by registered mail to the performance of its rights and obligations hereunder, address set forth in Section 10.4 for the Seller Representative and that service in such manner shall have the right at be adequate, and such Seller shall not assert any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain defense or claim that service in such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary manner was not adequate or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelysufficient in any court in any jurisdiction.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, such Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Xxxxxx in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers power of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem reasonably necessary or appropriate in connection with any of the transactions Transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VIIX, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)9.4; (ii) making on behalf of the Sellers any determinations with respect to the post-Closing Exchange Consideration adjustments under Section 2.5, (iii) acting on behalf of such Person the Sellers under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each such Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, discretion deems necessary or advisable in the performance of its duties as the Seller Representative and to rely on their advice and counsel; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser RepresentativePubco, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIIX , shall be binding upon the each Seller and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 13.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser RepresentativePubco, the Merger Sub, Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser RepresentativePubco, the Merger Sub, Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VIIX, (ii) any payment instructions provided by the Seller Representative Representative, or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party shall have any cause of action against the Pubco, Merger Sub, Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Purchaser Representative, the PurchaserPubco, Merger Sub, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the any Seller or any Indemnifying Party for any allocation or distribution to among the Seller Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d13.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations services hereunder, but will be entitled to the Seller Representative shall have payment from the right at any time and from time to time to select and engage, at the reasonable cost and expense Sellers of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, all its expenses incurred as the Seller Representative may reasonably deem necessary or appropriate from time to timeRepresentative. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 13.14 shall survive the Closing and continue indefinitelyClosing.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten twenty (1020) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors written consent of the SellerPrimary Sellers, and promptly thereafter (but in any event within two five (25) Business Days after such appointment) notify the Purchaser Representative Pubco and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Edoc Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxxx Xxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.13; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Shareholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Shareholder for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses that the Seller or any Indemnifying Party Company Shareholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Global Blockchain Acquisition Corp.)
Seller Representative. (a) Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxSubject to the limitations set forth in this Section 8.2, in connection with an Approved Sale, all of the capacity as Unitholders, collectively, shall irrevocably constitute and appoint Xxxxx Xxxxx (the “Seller Representative”) as his, as the true and lawful her or its representative, agent and attorney-in-fact of such Persons with full powers power of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing any and all such further acts things and things, execute any and to execute all such documents on behalf of such PersonUnitholder that may be necessary, if anyconvenient or appropriate to facilitate the consummation of an Approved Sale (including in their capacity as incentive equityholders, optionholders and/or warrantholders), including but not limited to: (i) execution of the documents and certificates pursuant to an Approved Sale; (ii) receipt of payments under or pursuant to an Approved Sale and disbursement thereof to the Unitholders and others, as contemplated by such Approved Sale; (iii) receipt and forwarding of notices and communications pursuant to an Approved Sale; (iv) administration of the Seller Representative will deem provisions of any agreements entered into in connection with an Approved Sale; (v) giving or agreeing to, on behalf of all or any of the Unitholders, any and all consents, waivers, amendments or modifications deemed by Xxxxx Xxxxx, in its reasonable and good faith discretion, to be necessary or appropriate in connection with any of an Approved Sale and the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending execution or waiving on behalf of such Person any provision delivery of any Seller Representative Document (provided, documents that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will may be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 appropriate in the performance of its duties as the Seller Representative and to rely on their advice and counselconnection therewith; (vi) incurring and paying reasonable costs and expenses, including fees amending any agreement entered into in connection with an Approved Sale or any of brokers, attorneys and accountants incurred the instruments to be delivered pursuant to such Approved Sale; (vii)(A) dispute or refrain from disputing, on behalf of each Unitholder relative to any amounts to be received by such Unitholder under any agreements contemplated by an Approved Sale, any claim made by the transactions purchaser pursuant to such agreements contemplated herebythereby, (B) negotiate and compromise, on behalf of each such Unitholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, any agreement entered into in connection with an Approved Sale, and (C) execute, on behalf of each such Unitholder, any settlement agreement, release or other reasonable fees and expenses allocable or in any way relating document with respect to such transaction dispute or any indemnification claim, whether incurred prior or subsequent remedy; except in each case with respect to Closing; (vii) receiving all or any portion of a dispute between a Unitholder on the consideration provided to one hand and Xxxxx Xxxxx on the Seller under this Agreement and to distribute the same to the Sellerother hand; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Documentengaging attorneys, including giving and receiving all notices and communications hereunder accountants, agents or thereunder consultants on behalf of such Person. All decisions and actions by the Seller Representative, including Unitholders in connection with any agreement between the Seller Representative and the Purchaser Representative, the Purchaser Approved Sale or any Indemnified Party relating other agreement contemplated thereby and paying any fees related thereto to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims extent not paid by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken the Person acquiring the Company (to be reimbursed pro rata by any of them in reliance the Unitholders based upon the instructions or decisions amount of consideration received by each Unitholder in the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller RepresentativeApproved Sale).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Project Angel Parent, LLC)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxLi Jingping, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) bringing, managing, controlling, defending and settling on behalf of an a Seller Indemnified Party or Seller Indemnifying Party any indemnification claims by or against any of them under Article VIVIII, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)8.5; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) making on behalf of such Person any determinations and taking all actions on their behalf relating to the Earn-Out Payments under Article II and any disputes with respect thereto; (iv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable sole discretion, deems necessary or advisable in the performance of its duties as the Seller Representative and to rely on their advice and counsel; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser DT Representative, the Purchaser or any other Purchaser Indemnified Party or Purchaser Indemnifying Party relating to the defense or settlement of any claims for which an a Seller Indemnifying Party may be required to indemnify an a Purchaser Indemnified Party pursuant to Article VIVIII or for which a Purchaser Indemnifying Party may be required to indemnify a Seller Indemnified Party pursuant to Article VIII, shall be binding upon the Seller Sellers and its their respective successors and assigns, and neither they nor any other Party shall not have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser DT Representative, the Purchaser, the Company and the other Purchaser Indemnified Parties and the Purchaser Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of Sellers hereunder or any Ancillary Document to which the Seller under any Seller Representative Documentsis a party. The Purchaser DT Representative, the Purchaser, the Company and each Purchaser Indemnified Party and Purchaser Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Purchaser Indemnified Party or against a Purchaser Indemnifying Party pursuant to Article VIVIII, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any or other Seller Indemnified Party or Seller Indemnifying Party shall have any cause of action against the Purchaser DT Representative, the Purchaser, the Company or any other Purchaser Indemnified Party or Purchaser Indemnifying Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser DT Representative, the Purchaser, the Company and the other Purchaser Indemnified Parties and Purchaser Indemnifying Parties shall not have any Liability liability to the any Seller or any other Seller Indemnified Party or Seller Indemnifying Party for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d12.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any other Seller Indemnified Party or Seller Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations services hereunder, but will be entitled to the Seller Representative shall have the right at any time and payment from time to time to select and engage, at the reasonable cost and expense Sellers of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, all its expenses incurred as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate Pro Rata Shares in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser DT Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxx Xxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to whether the Share Price Targets have been achieved and Earnout Shares are to be issued under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.3; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the each Seller and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Sellers under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party disputes with respect to the Share Price Targets pursuant to Article VISection 1.3, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the any Seller or any Indemnifying Party for any allocation or distribution to among the Seller Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the a Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d10.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Purchaser shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerPurchaser, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Apeiron Capital Investment Corp.)
Seller Representative. (a) Seller GroupEach Alps Holdco Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Dx. Xxxx XxxxxxxxXxxx Kong, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents Additional Agreements to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) making on behalf of such Person and taking all actions on their behalf relating to the achievement of the requirements for the Earn-out Shares and any disputes with respect thereto; (ii) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VIARTICLE XII, including controlling, defending, managing, settling and participating in any Third Third-Party Claim in accordance with Section (a)thereunder; (iiiii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Alps Holdco Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Alps Holdco Shareholders unless otherwise agreed by each Seller Stockholder Alps Holdco Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Alps Holdco Shareholders under this Agreement and to distribute the same to the SellerAlps Holdco Shareholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Parent Representative, the Purchaser Parent or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIARTICLE XII, shall be binding upon the Seller each Alps Holdco Shareholder and its their respective successors and assigns, and neither they nor any other Party party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 13.21 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Parent Representative, the PurchaserParent, the Company Alps Holdco and the Indemnified Parties Party and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Alps Holdco Shareholders under any Seller Representative Documents. The Purchaser Parent Representative, the PurchaserParent, the Company Alps Holdco and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VIARTICLE XI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Alps Holdco Shareholder nor any Indemnifying Party shall have any cause of action against the Purchaser Parent Representative, the Purchaser, the Company Parent or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company Parent Representative and the other Indemnified Parties Parent shall not have any Liability to the Seller any Alps Holdco Shareholder or any Indemnifying Party for any allocation or distribution to among the Seller Alps Holdco Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Alps Holdco Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Alps Holdco Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Alps Holdco Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller an Alps Holdco Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d13.21(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Alps Holdco Shareholders 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 SellerAlps Holdco Shareholders, but the Seller Representative will not be responsible to the Seller Alps Holdco Shareholders for any Losses that the Seller any Alps Holdco Shareholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Alps Holdco Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerAlps Holdco Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 13.21 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerAlps Holdco Shareholders, then Seller the Alps Holdco Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerAlps Holdco Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Parent Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Dx. Xxxxxxxxxx Xxxxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)2.11; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser ParentCo Representative, the Purchaser ParentCo or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, Kernel shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15(a) are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser ParentCo Representative, the Purchaser, Kxxxxx and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser ParentCo Representative, the Purchaser, Kxxxxx and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company shall have any cause of action against the Purchaser ParentCo Representative, the Purchaser, Kernel or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser ParentCo Representative, the Purchaser, Kxxxxx and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser ParentCo Representative and the Purchaser Kxxxxx in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Kernel Group Holdings, Inc.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxxx X. Xxxx, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an a Company Indemnifying Party any indemnification claims against any of them under Article ARTICLE VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)Claim; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated herebyTransactions, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser Buyer or any Buyer Indemnified Party relating to the defense or settlement of any claims for which an a Company Indemnifying Party may be required to indemnify an a Buyer Indemnified Party pursuant to Article ARTICLE VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 7.13 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the PurchaserBuyer, the Company and the Buyer Indemnified Parties and the Company Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the PurchaserBuyer, the Company and each Buyer Indemnified Party and Company Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article ARTICLE VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Company Indemnifying Party shall have any cause of action against the Purchaser Representative, the PurchaserBuyer, the Company or any other Buyer Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the PurchaserBuyer, the Company and the other Buyer Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Company Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d7.13(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Company Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 7.13 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement
Seller Representative. (a) Each Equityholder hereby appoints Xxxx Xxxxxx as its Seller GroupRepresentative (the “Seller Representative”) and Xxxx Xxxxxx accepts such appointment as the Seller Representative.
(b) The Seller Representative will serve as the agent and attorney-in-fact for the Seller Parties to facilitate the consummation of the Transactions, by delivery of a Letter of Transmittal, and in connection with the activities to be performed on behalf of itself the Seller Parties under this Agreement and its successors any other related Transaction documents, for the purposes and assignswith the powers and authority set forth in this Section 10.15, hereby irrevocably constitutes which will include the full power and appoints Xxxx Xxxxxxxxauthority:
(i) to take such actions and to execute and deliver such amendments, modifications, waivers, terminations and consents in connection with this Agreement and the capacity other Transaction documents and the consummation of the Transactions as the Seller Representative, in his reasonable discretion, deems necessary or desirable to give-effect to intentions of this Agreement and the other Transaction documents;
(ii) as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution the Seller Parties to act in enforce and protect the name, place rights and stead of thereof with respect to the performance on behalf interests of such Person Seller Parties and to enforce and protect the rights and interests of the Seller Parties arising out of or under the terms and provisions of or in any manner relating to this Agreement and each other Transaction document and, in connection therewith, to:
(A) resolve all questions, disputes, conflicts and controversies concerning (1) the Ancillary Documents Estimated Purchase Price Calculation Statement and the Final Purchase Price Calculation Statement and (2) indemnification claims pursuant to which the Seller Representative is a party or otherwise has rights in such capacity (together with Article VI of this Agreement;
(B) employ such agents, the “Seller Representative Documents”)consultants and professionals, as the same may be from time delegate authority to time amendedtheir agents, take such actions and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate Parties in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors this Agreement as the Seller Representative, in its his 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 SellerSeller Parties;
(C) investigate, but defend, contest or litigate any action initiated by an Acquiror Indemnified Party, or any other Person, against a Seller Party, and receive process on behalf of any or all Seller Parties in any such claim, action or investigation and compromise or settle on such terms as the Seller Representative determines to be appropriate, give receipts, releases and discharges on behalf of the Seller Parties with respect to any such claim, action or investigation;
(D) file any proofs, debts, claims and petitions as the Seller Representative may deem advisable or necessary;
(E) settle or compromise any indemnification claim (pursuant to the terms of this Agreement) asserted under Article VI of this Agreement;
(F) assume, on behalf of the Seller Parties, the defense of any indemnification claim (pursuant to the terms of this Agreement) that is the basis of any claim asserted under Article VI of this Agreement;
(G) file and prosecute appeals from any decision, judgment or award related to any of the foregoing indemnification claims, actions or investigations, or others arising in connection with this Agreement it being understood that the Seller Representative will not be responsible have any obligation to take any such actions, and will not have liability for any failure to take any such action;
(iii) to enforce payment of any other amounts payable to the Seller for Parties in each case on behalf of such Seller Parties, in the name of the Seller Representative;
(iv) to waive or refrain from enforcing any Losses right of the Seller Parties arising out of or under or in any manner relating to this Agreement or any other Transaction document;
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Seller Representative, in his sole and absolute direction, considers necessary or any Indemnifying Party may suffer by reason proper or convenient in connection with or to carry out the activities described above in paragraphs (i) through (iv) and the Transactions;
(vi) to receive payments from Acquiror, other than payment of the performance Closing Date Companies Purchase Price, on behalf of and for the Seller Parties and disbursing such payments to the Sellers in accordance with this Agreement or the Seller Parties’ interests;
(vii) to establish an escrow for the payment of joint expenses of the Seller Parties under this Agreement;
(viii) to prepare, review, contest, dispute, negotiate, resolve, or otherwise act in connection with the Estimated Purchase Price Calculation Statement;
(ix) to negotiate, settle, adjust, contest, dispute, resolve or otherwise deal with any investigations, audits, reviews, contests, disputes or claims of any tax authorities arising out of or related to the Companies’ or their affiliates’ tax returns or taxes;
(x) to inspect, review, examine or copy, or authorize representatives to do so, the books or records of the Acquiror, the Companies or their affiliates as permitted by this Agreement; and
(xi) collect, compromise, settle, receive, factor or negotiate, or prosecute, defend, settle or compromise any legal actions to collect, any Closing Date Receivables.
(c) All decisions, actions, consents, instructions and communications by the Seller Representative of shall be binding upon the Seller Representative’s duties under this AgreementParties and no Seller Party shall have the right to object to, other than Losses arising from dissent from, protest or otherwise contest the bad faithsame.
(d) The Acquiror is entitled to rely exclusively upon all decisions, gross negligence actions, consents, instructions or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part communications of the Seller Representative (in its capacity under this Agreement as such) and arising out of the decisions, actions, consents, instructions or in connection with the acceptance or administration communications of the Seller Representative’s duties under any Parties. The Acquiror (i) need not be concerned with the authority of the Seller Representative Document, including the reasonable fees and expenses to act on behalf of any legal counsel retained by the Seller Parties appointing such Seller Representative. In no event shall , (ii) will not be held liable or accountable in any matter for any action taken in accordance with any decision, action, consent, instruction or communication of the Seller Representative and (iii) will not be held liable or accountable in any manner for any act or omission of the Seller Representative in such capacity be liable hereunder capacity.
(e) Each Seller Party makes, constitutes and appoints Xxxx Xxxxxx such Person’s true and lawful attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver or in connection herewith for record any indirectand all agreements, punitiveinstruments or other documents, special or consequential damages. The Seller Representative shall not be liable for and to take any act done or omitted under any Seller Representative Document as and all actions, that are within the scope and authority of the Seller Representative while acting provided for in good faith this Section 10.15. The grant of authority provided for in this Section 10.15 is coupled with an interest and without willful misconduct or gross negligenceis being granted, and any act done or omitted pursuant in part, as an inducement to the advice parties to enter into this Agreement and is irrevocable and will survive the death, incompetency, bankruptcy or liquidation of counsel shall any Seller Party and will be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon binding on any written notice, demand, certificate or document that it in good faith believes successor thereto.
(f) If Xxxx Xxxxxx becomes unable to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, perform his responsibilities as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 Agreement or resigns from such position, Perry Xxxx Xxxxxxx will automatically be appointed to replace Xxxx Xxxxxx as the Seller Representative, and if Perry Xxxx Xxxxxxx becomes unable to perform his responsibilities as Seller Representative under this Agreement or resigns from such position, the Seller Parties shall survive be entitled to elect a new Seller Representative by a vote of the Closing Seller Parties holding a majority of the Equity Interests at the date hereof. Notice of such appointment shall be sent to the Acquiror and continue indefinitelyuntil such notice is received, the Acquiror shall be entitled to rely on the-decisions, actions, consents,-instructions and communications of the prior Seller Representative. Any former Seller Representative will be entitled to the same indemnification rights and protection from liability provided to a then-serving Seller Representative with regard to any actions taken while serving as the Seller Representative.
(dg) If For purposes of obtaining consent from the Seller Representative, the Acquiror may rely on documents executed in multiple counterparts, the signatures of each individual appointed as the Seller Representative shall die, become disabled, dissolve, resign need not appear on the same counterpart and delivery of an executed counterpart signature page by facsimile or otherwise be unable or unwilling to fulfill its responsibilities portable document format (.PDF) is as representative effective as executing and agent delivering such signature page in the presence of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of parties to this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assigns, each Seller hereby irrevocably constitutes and appoints Xxxx XxxxxxxxAxxxxx Xxxxx (in such capacity, in the capacity as the “Seller Representative, ”) as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Seller Representative Ancillary Documents, including: (i) managing, controlling, defending and settling on behalf agree upon or compromise any matter related to the calculation of an Indemnifying Party any indemnification claims against any of them adjustments to the purchase price under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)this Agreement; (ii) acting on behalf direct the distribution of such Person the Purchase Price among Sellers, including any payments under the Escrow Agreementeither Note; (iii) terminatingact for Sellers with respect to all indemnification matters referred to in this Agreement, amending or waiving including the right to compromise on behalf of such Person Sellers any indemnification claim made by or against Sellers, if any; (iv) act for Sellers with respect to all post-Closing matters; (v) terminate, amend or waive any provision of any Seller Representative Document (this Agreement; provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivvi) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable his or her sole discretion, deems necessary or advisable in the performance of its his or her duties as the Seller Representative and to rely on their advice and counsel; (vivii) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving receive all or any portion of the consideration provided to the Seller under this Agreement Purchase Price and to distribute the same to Sellers pro rata in proportion to their ownership interests; (ix) sign any releases or other documents with respect to and dispute or remedy arising under this Agreement or the SellerAncillary Documents; and (viiix) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in his or her sole discretion relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any Seller could do if personally present and acting. The Seller Representative xxxxxx hereby accepts its his or her appointment and authorization as the Seller Representative under this Agreement.
(b) Any The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable, and any other Person, including the Purchaser Representative, the PurchaserBuyer, the Company and the any other Buyer Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Seller Representative DocumentsAncillary Document to which they are a party. The Purchaser Representative, the Purchaser, the Company and each Each Buyer Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Buyer Indemnified Party pursuant to Article VIARTICLE VII hereof, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Indemnified Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Buyer Indemnified Party for any action taken by any of them a Buyer Indemnified Party in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other No Buyer Indemnified Parties Party shall not have any Liability liability to the Seller or any Indemnifying Party Sellers for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses loss or damage that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the such Seller Representative’s duties under this Agreement, other than Losses loss or damage arising from the bad faithfraud, gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative’s duties under this Agreement. From Sellers do hereby jointly and after the Closing, the Seller shall indemnify, defend severally agree to indemnify and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the fraud, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done the performance of his or omitted under any Seller Representative Document her services hereunder, but will be entitled to the payment from Sellers of all his or her expenses incurred as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its his or her responsibilities as representative and agent of the SellerSellers, then Seller Sellers shall, within ten (10) days after such death, death or disability, dissolution, resignation or other event, appoint a successor Seller Representative agent and, promptly thereafter (as determined by the board of directors of the Seller, but in any event within two (2) Business Days after such appointment) ), shall notify the Purchaser Representative and the Purchaser Buyer in writing of the identity of such successor. Any such successor shall be appointed by the written consent of Sellers, and any successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
(e) All notices or other communications required to be made or delivered by Buyer to a Seller shall be made to the Seller Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of Buyer to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Seller Representative (except for a notice under Section 8.14(d) of the replacement of the Seller Representative).
Appears in 1 contract
Samples: Equity Purchase Agreement (Staffing 360 Solutions, Inc.)
Seller Representative. (a) The Seller GroupRepresentative is hereby constituted and appointed as exclusive proxy, by delivery of a Letter of Transmittalrepresentative, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place for and stead of thereof with respect to the performance on behalf of the other Sellers, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for such Person under Sellers at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement. Without limiting the generality of the foregoing, the Seller Representative has full power and authority, on behalf of each Seller and his or her successors and assigns, to (i) interpret the terms and provisions of this Agreement and the Ancillary Documents documents to which be executed and delivered by the 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 the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate and enter into settlements and compromises of, assume the defense of claims and comply with Orders with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Seller Representative is a party for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or otherwise has rights appropriate in such capacity (together 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 2.3 and Section 2.4, and (viii) use the Representative Fund Amount to pay, or establish a reserve for, any costs, fees, expenses and other liabilities incurred by the Seller Representative Documents”)(in its capacity as such) in connection with this Agreement and its obligations hereunder. By executing this Agreement, as the same Seller Representative accepts the appointment, authority and power contemplated by this Section 11.1.
(b) Such agency may be changed by the Seller Representative from time to time amendedupon not less than five (5) days prior written notice to Buyer (so long as such change is reasonably acceptable to Buyer). The Seller Representative, or any successor hereafter appointed, may resign at any time by written notice to Buyer. Such written notice to the Buyer shall include the Seller Representative’s appointment of a successor (and such successor shall be reasonably acceptable to do or refrain from doing all such further acts Buyer). All power, authority, rights and things, and privileges conferred in this Agreement to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with apply to any of the transactions contemplated under the successor Seller Representative.
(c) The Seller Representative Documentswill not be liable for any act done or omitted under this Agreement as Seller Representative while acting in good faith, including: (i) managing, controlling, defending and settling on behalf any act taken or omitted to be taken pursuant to the advice of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf counsel will be conclusive evidence of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, good faith. Buyer agrees that any such action, if material it will not look to the rights and obligations of the Seller in the reasonable judgment 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 and the Seller Representative will not look to Buyer or, post-Closing, the Company for any of the Sellers’ indemnification obligations hereunder. 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 any that such 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 the Seller Representative will be taken in indemnified and held harmless by the same manner with respect Sellers for all losses, except to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment extent that the actions or omissions of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any the Seller Representative Document; (vwere taken or omitted not in good faith. The limitation of liability and indemnification provisions of this Section 11.1(c) employing will survive the termination of this Agreement and obtaining the advice resignation of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, deems necessary or advisable in the performance .
(d) The appointment of its duties as the Seller Representative is coupled with an interest and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable may not be revoked in whole or in any way relating to such transaction part (including, without limitation, upon the death or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations incapacity of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such PersonSeller). All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, Such appointment shall be binding upon the Seller and its respective heirs, executors, administrators, estates, personal representatives, officers, directors, security holders, successors and assigns, assigns of each Seller. All decisions of the Seller Representative shall be final and neither they nor any other Party binding on all of the Sellers and no securityholder shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party Buyer shall be entitled to rely conclusively on the instructions and decisions of upon, without independent investigation, any act, notice, instruction or communication from the Seller Representative as to (i) the settlement of and any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided document executed by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause on behalf of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon connection with any written notice, demand, certificate action or document that it in good faith believes inaction taken or omitted to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative taken in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyreliance thereon.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (U.S. Auto Parts Network, Inc.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes constitute and appoints Xxxx Xxxxxxxxappoint Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx, collectively in the their capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a6.4(c); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser RepresentativePurchaser, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.13 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.13(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.13 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxxthe Company’s Chief Financial Officer, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) controlling and making any determinations with respect to the post-Closing Merger Consideration adjustments under Section 1.13; (iii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller any Company Stockholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Dx. Xxxx XxxxxxxxXxxx Kong, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents Additional Agreements to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) making on behalf of such Person and taking all actions on their behalf relating to the achievement of the requirements for the Earn-out Shares and any disputes with respect thereto; (ii) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VIARTICLE XI, including controlling, defending, managing, settling and participating in any Third Third-Party Claim in accordance with Section (a)thereunder; (iiiii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Parent Representative, the Purchaser Parent or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIARTICLE XI, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.21 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Parent Representative, the PurchaserParent, the Company and the Indemnified Parties Party and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser Parent Representative, the PurchaserParent, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VIARTICLE XI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Shareholder nor any Indemnifying Party shall have any cause of action against the Purchaser Parent Representative, the Purchaser, the Company Parent or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company Parent Representative and the other Indemnified Parties Parent shall not have any Liability to the Seller any Company Shareholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d12.21(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses that the Seller any Company Shareholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 12.21 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Parent Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalEach Company Stockholder, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxTie (Jxxxx) Lx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.16; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.16 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalEach Company Stockholder, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxHGP II, LLC, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.17; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.16(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.16 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lakeshore Acquisition I Corp.)
Seller Representative. (a) Seller GroupBy the execution and delivery of this Agreement (and with respect to Company Secuirtyholders, by delivery deliver of a Letter of Transmittal), the Company (solely with respect to periods prior to the Effective Time) and each Company Securityholder on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxClearlake Capital Management III, L.P. in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of the Company and such Persons Company Securityholder with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting making on behalf of such Person any determinations and taking all actions on their behalf relating to the adjustments to the Merger Consideration described in Section 1.12 or the achievement of the Earnout Payments under the Escrow AgreementArticle II and any disputes with respect thereto; (iiiii) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Company Securityholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Securityholders unless otherwise agreed by each Seller Stockholder Company Securityholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Securityholders under this Agreement and to distribute the same to the SellerCompany Securityholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Parent Representative or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIParent, shall be binding upon the Seller Company (with respect to periods prior to the Effective Time), each Company Securityholder and its their respective successors and assigns, and neither they nor any other Party shall not have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Parent Representative, the PurchaserParent, the Company and the Indemnified Parties and the Indemnifying Parties Company Securityholders may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Company (for periods prior to the Effective Time) and the Company Securityholders hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Parent Representative, the Purchaser, Parent and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller Company nor any Indemnifying Party Company Securityholder shall have any cause of action against the Purchaser Parent Representative, the Purchaser, Parent or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Parent Representative, the Purchaser, Parent and the Company and the other Indemnified Parties shall not have any Liability to the Seller Company or any Indemnifying Party Company Securityholder for any allocation or distribution to among the Seller Company Securityholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller Company or a Company Securityholder under this Agreement or any Ancillary Document to which the Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the Sellersuch Company Securityholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Securityholder with respect thereto. All notices or other communications required to be made or delivered by the Seller Company or a Company Securityholder shall be made by the Seller Representative (except for a notice under Section 9.17(d11.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company and the Company Securityholders 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 SellerCompany and the Company Securityholders, but the Seller Representative will not be responsible to Company or the Seller Company Securityholders for any Losses that Company or the Seller or any Indemnifying Party Company Securityholders may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller The Parent shall indemnify, defend and hold harmless the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under this Agreement or any Seller Representative Ancillary Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerParent, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.14 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Securityholders, then Seller the Company Securityholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Securityholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Parent Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Forum Merger Corp)
Seller Representative. (a) Seller GroupIn connection with each Approved Sale, unless otherwise determined by delivery of a Letter of Transmittalthe Investor, on behalf of itself and its successors and assigns, hereby each Securityholder irrevocably constitutes and appoints Xxxx Xxxxxxxxappoints, and will constitute and appoint, the Investor or any Affiliate of the Investor, in each case, designated by the capacity as Investor (the "Seller Representative") as his, as the true and lawful her or its representative, agent and attorney-in-fact of such Persons with full powers power of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing any and all such further acts things and things, execute any and to execute all such documents on behalf of such PersonSecurityholder that may be necessary, if any, as the Seller Representative will deem necessary convenient or appropriate in connection with to facilitate the consummation of the Approved Sale, the administration of and carrying out of the terms of agreements governing such Approved Sale (including giving or agreeing to, on behalf of all or any of the transactions contemplated under the Seller Representative DocumentsSecurityholders, including: (i) managingany and all consents, controllingwaivers, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending amendments or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed modifications deemed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable sole and absolute discretion, deems to be necessary or advisable in appropriate under the performance of its duties as the Seller Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations terms of any agreements entered into in connection with such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such PersonApproved Sale). All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its This appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as is coupled with an interest and shall not be revocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the acts death, illness, dissolution, disability, incapacity or other inability to act of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party principal pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damagesapplicable law. The Seller Representative shall not be liable to any Securityholder in its capacity as the Seller Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted under any Seller Representative Document as the Seller Representative while acting by it that it believed to be in good faith and without willful misconduct or gross negligencefor any mistake in fact or law, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected for anything which it may do or refrain from doing in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights agreements related to such Approved Sale. The Securityholders shall severally, but not jointly, pro rata in accordance with their respective proceeds from such Approved Sale, indemnify and obligations hereunderhold harmless, the Seller Representative shall have the right at from any time and from time to time to select all losses, liabilities and engage, at expenses (including the reasonable cost fees and expense expenses of counsel) arising out of or related to the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, Seller Representative's service as the Seller Representative may reasonably deem necessary or appropriate from time to timeRepresentative. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Securityholders Agreement (ITHAX Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxRxxx Xxxxx, in the capacity as the of Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assigns, each Seller hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, Representative as the true and lawful agent agent, representative and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Seller Representative Ancillary Documents, including: (i) managingact for Sellers with respect to all indemnification matters referred to in this Agreement, controlling, defending and settling including the right to compromise on behalf of an Indemnifying Party Sellers any indemnification claims claim made by or against any of them under Article VISellers, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)if any; (ii) acting on behalf of such Person under the Escrow Agreementact for Sellers with respect to all post-Closing matters; (iii) terminatingterminate, amending amend or waiving on behalf of such Person waive any provision of any Seller Representative Document (this Agreement; provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable his or her sole discretion, deems necessary or advisable in the performance of its his or her duties as the Seller Representative and to rely on their advice and counsel; (viv) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving receive all or any portion of the consideration provided to the Seller under this Agreement Purchase Price and to distribute the same to Sellers pro rata in proportion to their ownership interests; (vii) sign any releases or other documents with respect to and dispute or remedy arising under this Agreement or the SellerAncillary Documents; and (viii) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in his or her sole discretion relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any Seller could do if personally present and acting. The Seller Representative xxxxxx hereby accepts its his or her appointment and authorization as the Seller Representative under this Agreement.
(b) Any The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable, and any other Person, including the Purchaser Representative, the PurchaserBuyer, the Company and the any other Buyer Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of Sellers hereunder or any Ancillary Document to which the Seller under any Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Company and each Each Buyer Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Buyer Indemnified Party pursuant to Article VIARTICLE VII hereof, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Indemnified Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Buyer Indemnified Party for any action taken by any of them a Buyer Indemnified Party in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other No Buyer Indemnified Parties Party shall not have any Liability liability to the Seller or any Indemnifying Party Sellers for any allocation or distribution to the Seller among Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses loss or damage that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the such Seller Representative’s duties under this Agreement, other than Losses loss or damage arising from the bad faithfraud, gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative’s duties under this Agreement. From Sellers do hereby jointly and after the Closing, the Seller shall indemnify, defend severally agree to indemnify and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the fraud, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done the performance of his or omitted under any Seller Representative Document her services hereunder, but will be entitled to the payment from Sellers of all his or her expenses incurred as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its his or her responsibilities as representative and agent of the SellerSellers, then Seller Sellers shall, within ten (10) days after such death, death or disability, dissolution, resignation or other event, appoint a successor Seller Representative agent and, promptly thereafter (as determined by the board of directors of the Seller, but in any event within two (2) Business Days after such appointment) ), shall notify the Purchaser Representative and the Purchaser Buyer in writing of the identity of such successor. Any such successor shall be appointed by the written consent of Sellers, and any successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
(e) All notices or other communications required to be made or delivered by a Buyer Party to a Seller shall be made to the Seller Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of a Buyer Party to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Seller Representative (except for a notice under Section 8.16(d) of the replacement of the Seller Representative).
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.15; (ii) acting on behalf of such Person under the Extension Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two five (25) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupBy voting in favor of the adoption of this Agreement, by delivery the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger and the execution of a Letter of Transmittal, on behalf of itself each Securityholder shall be deemed to have approved the designation of, and its successors and assignshereby designates, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity Shareholder Representative Services LLC as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Representative (which term shall include any successor appointed in accordance with full powers of substitution to act Section 7.5(c)) for all purposes in the name, place and stead of thereof connection with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents agreements ancillary hereto and to which perform all such acts as the Seller Representative is a party authorized to take under this Agreement or otherwise has rights in such capacity (together with this any Ancillary Agreement, which will include the “Seller Representative Documents”), as the same may be from time to time amended, power and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, includingauthority to: (i) managing, controlling, defending execute and settling on behalf of an Indemnifying Party any indemnification claims against any of them deliver all documents that the Seller Representative is authorized to execute and deliver under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)the Transaction Documents; (ii) acting on behalf of such Person under receive and, if applicable, forward notices and communications to the Escrow Participating Securityholders pursuant to this Agreement; (iii) terminatinggive or agree to, amending or waiving on behalf of such Person all or any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller RepresentativeParticipating Securityholders, will be taken in the same manner with respect to the Seller unless otherwise agreed any and all consents, waivers, amendments or modifications deemed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable sole and absolute discretion, deems to be 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller appropriate under this Agreement and the execute and deliver any documents that may be necessary or appropriate in connection therewith; (iv) following the Closing, amend, modify or supplement this Agreement or any documents to distribute be delivered to Parent pursuant to this Agreement; (v) following the same Closing, with respect to the Seller; Section 3.6 and Section 3.8, (viiiA) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Documentdispute or refrain from disputing, including giving and receiving all notices and communications hereunder or thereunder on behalf of each Participating Securityholder relative to any amounts to be received by such Person. All decisions Participating Securityholder thereunder, (B) negotiate and actions by the Seller Representativecompromise, including on behalf of each such Participating Securityholder, any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party dispute that may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assignsarise thereunder, and neither they nor exercise or refrain from exercising any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.remedies available thereunder,
Appears in 1 contract
Samples: Merger Agreement
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Dx. Xxxxxxxxxx Xxxxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.13; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aesther Healthcare Acquisition Corp.)
Seller Representative. (a) By executing this Agreement, each Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxSeller Representative as such Selling Parties’ representative, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons and agent, with full powers power of substitution to act in the name, place and stead of thereof such Seller in any and all respects in accordance with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if anydocuments, as the Seller Representative will shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated under by this Agreement or any Transaction Document, including the Seller Representative Documents, including: power:
(i) managingto execute and deliver, controllingand administer all matters pertaining to performance under, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them the Escrow Agreement to the extent permitted under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); the Escrow Agreement;
(ii) acting to negotiate, execute and deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments, assignments and other documents required or permitted to be given in connection with this Agreement, any other Transaction Document or the consummation of the transactions contemplated by this Agreement or any other Transaction Document (it being understood that such Seller shall execute and deliver any such documents that Seller Representative designates and agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement or any other Transaction Document and to receive service of process in connection with any claims under this Agreement or any Transaction Document (including, in each case, in connection with any proceedings conducted pursuant to Section 8.8) and the transactions contemplated hereby;
(iv) to direct, on behalf of such Person under Selling Party, the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision payment of any and all amounts due and payable to such Selling Party pursuant to this Agreement or any Transaction Document, subject to any adjustments made or reserves established or maintained by Seller Representative Document in his or her good faith discretion;
(providedv) to defend, that any such actionagree to, if material to the rights object to, negotiate, resolve, enter into settlements and obligations compromises of, demand arbitration or litigation of, and comply with orders of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner arbitrators and courts with respect to the Seller unless otherwise agreed Indemnification Claims and claims made on such Selling Party by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Buyer Indemnified Party pursuant to Article VIVII, shall be binding upon dispute resolution proceedings under Section 8.8 and any other disputes or proceedings arising out of, related to or commenced under this Agreement or any Transaction Document;
(vi) to incur any costs and expenses for the Seller account of such Selling Party, manage the payment of such costs and its respective successors and assignsexpenses, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties make all determinations that may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying such Selling Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company under this Agreement or any other Indemnified Transaction Document, including any engagement of and/or the fees and expenses associated with the engagement of legal counsel, accountants, investment bankers and financial advisers;
(vii) to take all actions that, under this Agreement or any other Transaction Document and the transactions contemplated hereby and thereby, may be taken by such Selling Party for and to do or refrain from doing any further act or deed on behalf of such Selling Party that Seller Representative deems necessary or appropriate in his or her sole discretion relating to the subject matter of this Agreement or any other Transaction Document and the transactions contemplated hereby and thereby as fully and completely as such Seller could do if personally present; and
(viii) to act on behalf of such Selling Party in any amendment or waiver of or negotiation, mediation, arbitration, litigation or similar proceeding involving this Agreement or any Transaction Document.
(b) This power of attorney, and all authority hereby conferred, is granted subject to the interests of Buyer 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 Selling Party or by operation of Law, whether by the merger, dissolution or liquidation of the Company, Amtran or any other Selling Party or by the occurrence of any other event (other than the death or incapacity of Seller Representative or otherwise by a written assignment or transfer of this power of attorney signed by all of the Selling Parties with written notice thereof delivered to Buyer). All action taken by any of them in reliance Seller Representative hereunder shall be final and binding upon the instructions or decisions of the Seller Representative. The Purchaser Representativeall Selling Parties, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the acknowledge and agree that Seller Representative shall have the right to enforce the rights of payments made Selling Parties under this Agreement and any Transaction Document against Buyer. Seller Representative shall have the right, at any time and from time to time, to designate any Selling Party to exercise his or at her rights and perform his or her obligations as Seller Representative under this Agreement. In the direction event of the Seller Representative. All notices any such designation or other communications required permitted assignment hereunder, all references in this Agreement to be made or delivered to the Seller under any Seller Representative Document shall be made interpreted to the refer to such designee or permitted assign. Upon Xxxxx’s request in each instance of a designation, Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered deliver a written instrument evidencing such designation duly executed by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)and his or her designee.
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will shall not be responsible liable to the Seller a Selling Party for any Losses that the Seller act taken or any Indemnifying Party may suffer omitted by reason of the performance by the Seller Representative of the Seller Representative’s duties him or her as permitted under this Agreement, the Escrow Agreement or any other than Losses arising from Transaction Document or the bad faithtransactions contemplated hereby and thereby, gross negligence except to the extent such act or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without omission constitutes gross negligence, bad faith or willful misconduct on the part a knowing and intentional breach of Seller Representative’s obligations under this Agreement. Seller Representative shall not be responsible to any Selling Party in any manner whatsoever for any failure or inability of Buyer or any other Person to honor any of the provisions of this Agreement or any other Transaction Document. Seller Representative shall, to the extent set forth in Section 8.16(d), be fully protected by Selling Parties in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document that Seller Representative in good faith believes to be genuine (in its capacity as suchincluding facsimiles thereof) and to have been signed or presented by the proper party or parties. Seller Representative shall not be liable to the Selling Parties for any error of judgment or any act done or step 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 this Agreement or any other Transaction Document, except for Seller Representative’s own gross negligence, bad faith or knowing and intentional breach of his or her obligations under this Agreement. Seller Representative may consult with counsel of its, his or her own choice and shall have complete authorization and, to the extent set forth in Section 8.16(d), protection for any action taken or suffered by it, him or her in good faith and pursuant to the advice of such counsel.
(d) Each Selling Party agrees to indemnify Seller Representative for, and to hold Seller Representative harmless against, any Damages suffered or incurred by Seller Representative arising out of or in connection with Seller Representative exercising its, his or her rights or performing his or her duties under this Agreement, the acceptance Escrow Agreement or administration any other Transaction Document and the transactions contemplated hereby and thereby, including the costs and expenses of Seller Representative incurred in its, his or her capacity thereof and the costs and expenses of successfully defending Seller Representative against any claim of liability with respect thereto, in each case, to the extent such Damages do not result from Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, bad faith or knowing and any act done intentional breach of its, his or omitted pursuant to the advice of counsel her obligations under this Agreement. The following accounting policies and treatments in Part I and Part II shall be conclusive evidence applied in the preparation of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document the Closing Statement and the Post-Closing Statement that it in good faith believes are required to be genuine, including facsimiles made in a manner consistent with or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection accordance with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyAccounting Principles.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Standex International Corp/De/)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assignsincluding counterparts thereof, each Seller hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxx Xxxxx (the “Seller Representative”), in the capacity as and the Seller RepresentativeRepresentative hereby accepts such appointment, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof such Seller with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, hereof and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if anydocuments, as the Seller Representative will shall deem necessary or appropriate in connection with any of transaction contemplated hereunder, including the transactions contemplated under the Seller Representative Documents, including: power to:
(i) managingact for such Seller, controllingif applicable, defending and settling on behalf of an Indemnifying Party any with respect to all indemnification claims against any of them under Article VImatters referred to herein, including controlling, defending, managing, settling and participating in the right to compromise or settle any Third Party Claim in accordance with Section (a); (ii) acting such claim on behalf of such Person under the Escrow Agreement; Seller;
(ii) amend or waive any provision hereof in any manner;
(iii) terminatingemploy, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights obtain and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining rely upon the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretionthe sole discretion thereof, deems necessary or advisable in the performance of its his duties as the Seller Representative Representative;
(iv) act for such Seller with respect to all Initial Purchase Price matters, including any adjustments thereto, and to rely on their advice and counsel; all earn-out matters;
(viv) incurring and paying reasonable costs and incur any expenses, including fees of brokers, attorneys liquidate and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder withhold assets received on behalf of such Person. All decisions Seller prior to their distribution to such Seller to the extent of any amount that the Seller Representative deems necessary for the payment of or as a reserve against expenses, and actions by pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(vi) receive all notices, service of process, communications and deliveries hereunder on behalf of such Seller; and
(vii) do or refrain from doing any further act or deed on behalf of such Seller that the Seller Representative deems necessary or appropriate, in the sole discretion of the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of subject matter hereof as fully and completely as such Seller could do if personally present and acting and as though any claims for which an Indemnifying Party may be required reference to indemnify an Indemnified Party pursuant such Seller herein was a reference to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementRepresentative.
(b) Any The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties Person may conclusively and absolutely rely, without inquiry, upon any actions action of the Seller Representative as the acts act of the such Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled in all matters referred to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative)herein.
(c) The Seller Representative will act for shall not have any duties or obligations except those expressly set forth herein. Without limiting the Seller on all generality of the matters set forth in this Agreement in the manner foregoing, (i) the Seller Representative believes shall not be subject to be in the best interest of the any fiduciary or other implied duties with respect to any Seller, but ; (ii) the Seller Representative will shall not be responsible have any duty to the Seller for take any Losses that the Seller discretionary action or exercise any Indemnifying Party may suffer by reason of the performance by discretionary powers, and (iii) except as expressly set forth herein, the Seller Representative of shall not have any duty to disclose, and shall not be liable for the Seller Representative’s duties under failure to disclose to any Seller, any information relating to Purchaser, this AgreementAgreement or the transaction contemplated hereunder except as specifically required herein or in any other agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct including but not limited to any information obtained by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its his capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damagesa Seller. The Seller Representative shall not be liable for any act done action taken or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative not taken by him in the foregoing manner. In connection with the performance absence of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary his own gross negligence or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelywillful misconduct.
(d) If In the event the Seller Representative shall die, become disabled, dissolve, resign resigns or otherwise be unable or unwilling ceases to fulfill its responsibilities as representative and agent of the Sellerfunction in such capacity for any reason whatsoever, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a the successor Seller Representative shall be the Person that Xxx Xxxxx appoints.
(e) The Purchaser acknowledges and agrees that except for his liability as determined by a Seller hereunder, Xxx Xxxxx shall have no additional liability under this Agreement due to the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity appointment of such successor. Any such successor so appointed shall become Seller as the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxExtra Technology Limited, a BVI business company, in the its capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)2.8; (ii) controlling and making any determinations with respect to the vesting or forfeiture of the Earnout Shares under Section 2.10; (iii) acting on behalf of such Person under the Earnout Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this AgreementCompany Shareholders. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 12.15 shall survive the Closing and continue indefinitely.
(dc) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Tristar Acquisition I Corp.)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxYxxx Xxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party Indemnitor any indemnification claims against any of them under Article VIVII, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)7.4; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) making on behalf of such Person any determinations and taking all actions on their behalf relating to the determination of the Adjustment Amount and the adjustment to the number of Exchange Shares under Section 1.5, and in each case any disputes with respect thereto; (iv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) 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; (vivii) 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 indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party other Indemnitee relating to the defense or settlement of any indemnification claims for which an Indemnifying Party Indemnitor may be required to indemnify an Indemnified Party Indemnitee pursuant to Article VIVII, shall be binding upon the Seller Sellers and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company Company, the Indemnitees and the Indemnified Parties and the Indemnifying Parties Indemnitors may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party Indemnitee and Indemnifying Party Indemnitor shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party Indemnitee pursuant to Article VIVII, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party other Indemnitor shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party Indemnitee for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties Indemnitees shall not have any Liability to the any Seller or any Indemnifying Party other Indemnitor for any allocation or distribution to among the Seller Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d11.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any Indemnifying Party other Indemnitor may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable to the Sellers hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time, but the Seller Representative will not be entitled to any fee, commission or other compensation for the performance of its services hereunder. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxBxxxxxxx X. Xxxxx, solely in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 13.13 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Holdco, Sponsor, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Holdco, Sponsor, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party Company Stockholders shall have any no cause of action against the Purchaser Representative, the Purchaser, Holdco, Sponsor, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Holdco, Sponsor, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d13.13(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 13.13 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Denali Capital Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxMingliu Wang, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents Additional Agreements to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) making on behalf of such Person and taking all actions on their behalf relating to the achievement of the requirements for the Earn-out Shares and any disputes with respect thereto; (ii) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VIARTICLE XI, including controlling, defending, managing, settling and participating in any Third Third-Party Claim in accordance with Section (a)thereunder; (iiiii) acting on behalf of such Person under the Escrow Agreement; (iiiiv) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (vvi) 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; (vivii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Parent Representative, the Purchaser Parent or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIARTICLE XI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.21 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Parent Representative, the PurchaserParent, the Company and the Indemnified Parties Party and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Parent Representative, the PurchaserParent, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VIARTICLE XI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller no Company Stockholder nor any Indemnifying Party shall have any cause of action against the Purchaser Parent Representative, the Purchaser, the Company Parent or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company Parent Representative and the other Indemnified Parties Parent shall not have any Liability to the Seller any Company Stockholder or any Indemnifying Party for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d12.21(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 12.21 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Parent Representative and the Purchaser Parent in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity The Company has appointed Xxxxxxxx Xxxxxxx Xxxxxxxxxx to act as the Seller Representative with such Seller Representative, ’s appointment to be submitted for approval by the Company and the Company Shareholders in the Company Arrangement Resolution and such Seller Representative to act as the true and lawful agent and attorney-in-fact of such Persons the Company Security Holders with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Persons under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Company Security Holders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Security Holders unless otherwise agreed by each Seller Stockholder Company Security Holder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claimtransaction, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viiiv) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, Pubco, shall be binding upon the Seller each Company Security Holder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 12.16 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Pubco, Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Company Security Holders hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Pubco, Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Security Holder shall have any cause of action against the Purchaser Representative, the Pubco, Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The None of the Purchaser Representative, the PurchaserPubco, Purchaser or the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Security Holder for any allocation or distribution to among the Seller Company Security Holders by the Seller Representative of payments or issuances made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Company Security Holder under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the Sellersuch Company Security Holder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Security Holder with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Security Holders 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 SellerCompany Security Holder, but the Seller Representative will not be responsible to the Seller Company Security Holder for any Losses that the Seller or any Indemnifying Party Company Security Holders may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Company (and after the Closing, the Seller shall Closing Pubco) will jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement or any Seller Representative Ancillary Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative, except for any liability arising out of the bad faith, gross negligence or willful misconduct of the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 12.16 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Security Holders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerConpany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative Representative, Pubco and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Healthwell Acquisition Corp. I)
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalThe Seller, on behalf of itself and its Subsidiaries, successors and assigns, by execution and delivery of this Agreement, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxR. Axxx Xxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and each such Person’s agent, attorney-in-fact of such Persons and representative, with full powers power of substitution to act in the name, place and stead of thereof with respect such Person, to the performance act on behalf of such Person from and after the Closing in connection with: (i) controlling and making any determinations with respect to the post-Closing Seller Consideration adjustments under Section 1.5; (ii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising after the terms and provisions of Closing under this Agreement and the or any Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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; (viiv) 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 indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viiiv) otherwise enforcing the rights and obligations of any such Persons after the Closing under any Seller Representative DocumentDocuments, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided, that the Parties acknowledge that the Seller Representative is specifically authorized and directed to act on behalf of, and for the benefit of, the members of Seller (after giving effect to the Reorganization). All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party Representative relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIdisputes under Section 1.5, shall be binding upon the Seller and its respective Subsidiaries, successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement. In the event of any distribution of the Seller Consideration Units or shares of Purchaser Class V Common Stock by the Seller to its members after the Closing, the members of Seller, as a condition to receiving such distribution, shall irrevocably appoint the Seller Representative as their agent, attorney-in-fact and representative, with the indemnities, immunities, releases and powers granted by the Seller under this Section 10.15 (with the obligations of such members being pro rata among the members based on the Seller Consideration Units received).
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunderunder any Purchaser Representative Document, and neither the Seller nor any Indemnifying Party shall not have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party its members for any allocation or distribution to among the Seller Seller’s members by the Seller Representative of payments made or securities delivered to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the a member of Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Seller member, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller member with respect thereto. All notices or other communications required to be made or delivered by the a Seller member shall be made by the Seller Representative (except for a notice under Section 9.17(d10.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will shall not be liable for any act for the done or omitted under any Seller on all of the matters set forth in this Agreement in the manner Representative as the Seller Representative believes to be while acting in the best interest of the Sellergood faith and without willful misconduct or gross negligence, but the Seller Representative will not be responsible and any act done or omitted pursuant to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason advice of the performance by the Seller Representative counsel shall be conclusive evidence of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad such good faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the The Seller shall indemnify, defend and hold harmless the Seller Representative harmless from and against any and all Losses reasonably losses, Actions, Orders, Liabilities, damages, amounts paid in settlement, costs and expenses (including reasonable expenses of investigation and court costs and reasonable attorney’s fees and expenses) incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder under or in connection herewith with any Seller Representative Document for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.15 shall survive the Closing and continue indefinitely.
(d) The Person serving as the Seller Representative may resign upon ten (10) days’ prior written notice to the Purchaser, the Purchaser Representative and the Seller. If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then the Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by vote or written consent of Seller’s members holding in the board of directors aggregate a majority of the voting equity interests of Seller (or upon the liquidation of Seller, a majority of the Seller Consideration Units)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such Each successor so appointed Seller Representative shall become have all of the power, authority, rights and privileges conferred by this Agreement upon the original Seller Representative, and the term “Seller Representative” for purposes of this Agreementas used herein shall be deemed to include any such successor Seller Representatives.
Appears in 1 contract
Samples: Business Combination Agreement (Andina Acquisition Corp. III)
Seller Representative. (a) Seller Group, by delivery of a Letter of TransmittalEach Earnout Participant, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxMx Xxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and each such Person’s agent, attorney-in-fact of such Persons and representative, with full powers power of substitution to act in the name, place and stead of thereof with respect such Person, to the performance act on behalf of such Person under from and after the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate Closing in connection with any of the transactions contemplated under the Seller Representative Documents, includingwith: (i) managing, controlling, defending controlling and settling on behalf making any determinations with respect to the vesting or surrender of an Indemnifying Party any indemnification claims against any of them the Earnout Shares under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)2.3; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision provisions of any Section 2.3 or the provisions of the Escrow Agreement (the “Seller Representative Document Provisions”) (provided, that any such action, if material to the rights and obligations of the Seller Earnout Participants in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Earnout Participants unless otherwise agreed by each Seller Stockholder Earnout Participant who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative DocumentProvision; (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 fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Earnout Participants under this Agreement and to distribute the same to the SellerEarnout Participants; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such PersonProvision. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPubco, shall be binding upon the Seller each Earnout Participant and his, her or its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 13.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser RepresentativePubco, the Purchaser, the Company JWAC and the Indemnified Parties and the Indemnifying Parties Company, may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Earnout Participants under any Seller Representative DocumentsProvisions. The Purchaser RepresentativePubco, the Purchaser, JWAC and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Earnout Participant shall have any cause of action against Pubco, JWAC or the Purchaser RepresentativeCompany. Pubco, the Purchaser, JWAC and the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Earnout Participant for any allocation or distribution to among the Seller Earnout Participants by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will shall not be liable for any act for the done or omitted under any Seller on all of the matters set forth in this Agreement in the manner Representative Provision as the Seller Representative believes to be while acting in the best interest of the Sellergood faith and without willful misconduct or gross negligence, but the Seller Representative will not be responsible and any act done or omitted pursuant to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason advice of the performance by the Seller Representative counsel shall be conclusive evidence of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad such good faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Company shall (and after the Closing, Pubco and the Seller Company shall jointly and severally) indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative DocumentProvision, including the reasonable out-of-pocket fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of Pubco and the SellerCompany, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 13.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerEarnout Participants, then Seller the Earnout Participants shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerEarnout Participants holding in the aggregate an Earnout Percentage in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify Pubco, the Purchaser Representative Company and the Purchaser JWAC in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Jupiter Wellness Acquisition Corp.)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter this Agreement, including counterparts of Transmittalthis Agreement, on behalf of itself and its successors and assigns, the Sellers hereby irrevocably constitutes constitute and appoints Xxxx Xxxxxxxx, in the capacity as appoint the Seller Representative, Representative as the true and lawful agent and attorney-in-fact of such Persons the Sellers with full powers of substitution to act in the name, place and stead of thereof the Sellers with respect to the performance on behalf of such Person the Sellers under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if anydocuments, as the Seller Representative will shall deem necessary or appropriate in connection with any of transaction contemplated under this Agreement, including the power to:
(i) act for the Sellers with respect to all matters arising under or related to this Agreement and all agreements contemplated hereby and the transactions contemplated under hereby and thereby, including all indemnification matters referred to in this Agreement, including the Seller Representative Documents, including: (i) managing, controlling, defending and settling right to compromise or settle any such claim on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); the Sellers;
(ii) acting on behalf amend or waive any provision of such Person under the Escrow Agreement; this Agreement (including any condition to Closing) in any manner;
(iii) terminatingemploy, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights obtain and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining rely upon the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretionthe sole discretion thereof, deems necessary or advisable in the performance of its the duties as of the Seller Representative and to rely on their advice and counsel; Representative;
(viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or receive any portion of the consideration provided Purchase Price or any other payment due to the Sellers pursuant to this Agreement for prompt distribution to the Sellers pursuant to this Agreement, the Company Operating Agreement, the Class B Unit Plan, the applicable Class B Unit Grant Documents and any other agreement as may be entered into by the Sellers;
(v) incur any expenses, liquidate and withhold assets received on behalf of the Sellers prior to their distribution to the Sellers to the extent of any amount that the Seller 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;
(vi) receive all notices, communications and deliveries under this Agreement on behalf of the Sellers;
(vii) give all notices, communications and deliveries required or permitted to distribute be given by the same to Sellers under this Agreement on behalf of the SellerSellers; and and
(viii) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by each Seller that the Seller Representative deems necessary or appropriate, in the sole discretion of the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement subject matter of this Agreement as fully and completely as such Seller could do if personally present and acting and as though any claims for which an Indemnifying Party may be required reference to indemnify an Indemnified Party pursuant such Seller in this Agreement was a reference to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementRepresentative.
(b) Any The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions action of the Seller Representative as the acts act of the Sellers in all matters referred to in this Agreement. Each Seller under hereby ratifies and confirms any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of all actions that the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative shall do or (iii) any other actions required or permitted cause to be taken done by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions virtue of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by ’s appointment as the Seller Representative of payments made to or at the direction of the Seller RepresentativeSellers. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will shall act for the Seller Sellers 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 SellerSellers, but the Seller Representative will shall not be responsible to the Seller Sellers for any Losses that loss or damage the Seller or any Indemnifying Party Sellers may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses loss or damage arising from the bad faith, willful misconduct or gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative’s duties under this Agreement. From Nothing in this Section 12.15 shall limit, diminish or otherwise affect the liability and after obligations of the Closing, Sellers pursuant to this Agreement.
(c) The Sellers hereby expressly acknowledge and agree that the Seller Representative is authorized to act on behalf of the Sellers notwithstanding any dispute or disagreement between the Sellers, and that any Person, including Purchaser, shall indemnifybe entitled to rely on any and all action taken by the Seller Representative under this Agreement without liability to, defend or obligation to inquire of, any of the Sellers. In the event the Seller Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Representative shall be the Person that the remaining Sellers appoint; provided, however, that in the event for any reason no successor has been appointed within thirty (30) days following such resignation or cessation, then Purchaser and the Sellers shall each have the right to petition a court of competent jurisdiction for appointment of a successor Seller Representative. The Sellers shall indemnify and hold the Seller Representative harmless from and against any and all Losses liabilities, losses, costs, damages and expenses (including attorneys’ fees) reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under any Seller Representative Documentthis Agreement, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith except for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the The Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling promptly distribute to fulfill its responsibilities as representative each Minority Class B Holder any and agent of the Seller, then Seller shall, within ten (10) days after all amounts payable thereto pursuant to this Agreement and in accordance with such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Minority Class B Holder’s respective Minority Purchase Agreement.
Appears in 1 contract
Samples: LLC Interest Purchase Agreement (Vitamin Shoppe, Inc.)
Seller Representative. (a) Each Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxTiptree, in the its capacity as the Seller Representative, to act as its representative for all purposes under the Transaction Agreements, and the Seller Representative hereby accepts such appointment. Each Seller hereby irrevocably constitutes and appoints, with full power of substitution, the Seller Representative as its true and lawful agent and attorney-in-fact of such Persons attorney‑in‑fact, with full powers of substitution power and authority in such Seller’s name, to take all actions required or permitted to be taken hereunder, and otherwise to act on behalf of, and to bind, each Seller for all purposes under the Transaction Agreements, including (i) approving or contesting any amounts in the nameClosing Statement and entering into any settlement or agreement to resolve any Disputed Item, place and stead of thereof with respect to the performance (ii) administering any indemnification matter on behalf of Sellers, including agreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, (iii) executing and delivering such Person under the terms waivers and provisions of consents in connection with this Agreement and each other Transaction Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any consummation of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending hereby and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors thereby as the Seller Representative, in its reasonable sole discretion, deems may deem necessary or advisable desirable, (iv) refraining from enforcing any right of any Seller and/or the Seller Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Agreement; provided that no such failure to act on the part of the Seller Representative, except as otherwise expressly provided in the performance applicable Transaction Agreement, shall be deemed a waiver of its duties as any such right or interest by the Seller Representative or by such Seller unless such waiver is in writing signed by the waiving party or by the Seller Representative and (v) making, executing, acknowledging and delivering all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to rely do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Transaction Agreements and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith. Without limiting the foregoing, (i) each Seller hereby expressly consents to the amendment of the Shareholders Agreement by and among PFG and its shareholders party thereto, dated as of December 16, 2010 (the “Shareholders Agreement”), to the extent reasonably required to facilitate the transactions contemplated hereby (provided that the foregoing consent to amend such Shareholders Agreement shall not apply to any amendment that would have a disproportionate material adverse effect upon any individual Seller as compared to the effect thereof on their advice the other Sellers hereunder), and counsel; (viii) incurring each Seller hereby agrees to cause the Articles of Incorporation of the Company, dated August 5, 1999 and paying reasonable costs as amended on July 12, 2012, to be amended prior to the Closing to delete the last sentence of the definition of “Sale Transaction” provided for in Article VI, Section F therein. Each Seller agrees to deliver, as and expenseswhen requested by the Seller Representative, including fees certificates evidencing such Seller’s Purchased Shares duly endorsed or accompanied by written instruments of brokerstransfer in form satisfactory to the Seller Representative, attorneys duly executed by such Seller, free and accountants incurred pursuant clear of any liens or other adverse claims or restrictions (other than the RGA Liens), and to appoint the Seller Representative as the custodian of such Purchased Shares for purposes of the Closing, with full power to deliver such Purchased Shares to the Buyer at Closing, whether or not such Purchased Shares are certificated or held of record in book entry form. Each Seller agrees to cooperate fully in, take all necessary and desirable actions approved by the Seller Representative in connection with, and not to take any action prejudicial or inconsistent with, the transactions contemplated hereby.
(b) In furtherance of this Section 1.6, each of the Sellers (i) hereby irrevocably grants to, and any other reasonable fees appoints the Seller Representative and expenses allocable its designees as its irrevocable proxy and attorney-in-fact (with full power of substitution and resubstitution) to vote the Shares, provide written consents, express consent or dissent or otherwise utilize voting power in any way relating accordance with the Seller Representative’s rights and obligations under this Section 1.6 during the term hereof, (ii) hereby affirms that the irrevocable proxy set forth in this Section 1.6(b) is given in connection with the execution of this Agreement, and that such irrevocable proxy is given to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion secure the performance of the consideration provided to the duties of such Seller under this Agreement and (iii) hereby (A) affirms that such irrevocable proxy is coupled with an interest and (B) affirms that such irrevocable proxy is executed and intended to distribute be irrevocable in accordance with the same provisions of Section 1759 of the General Association Act of the Commonwealth of Pennsylvania. Each Seller hereby represents that all proxies, powers of attorney, instructions or other requests given by such Seller prior to the execution of this Agreement in respect of the voting of the Shares held by such Seller; , if any, are not irrevocable and each Seller hereby revokes (viiior causes to be revoked) otherwise enforcing any and all previous proxies, powers of attorney, instructions or other requests with respect to the rights Shares. The vote, if any, of the proxy holder pursuant to the proxy set forth in this Section 1.6 shall control the outcome, and obligations be determinative, of any conflict between the vote by the proxy holder of any Seller’s Shares and a vote by such Persons under any Seller. Each Seller shall provide evidence to the Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf in connection with the actions of such PersonSeller under or relating to this Section 1.6(b) as the Seller Representative shall reasonably request.
(c) Each Seller acknowledges that this Section 1.6 is intended to promote the efficient negotiation and handling of matters arising under or in connection with the Transaction Agreements. All decisions Buyer shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Seller Representative and shall 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, including any agreement between each Seller hereby irrevocably constitutes and appoints, with full power of substitution, the Seller Representative as its true and the Purchaser Representativelawful attorney-in-fact, the Purchaser or with full power and authority in such Seller’s name, place and stead, to execute, certify, acknowledge, deliver, file and record all agreements, certificates, instruments and other documents and any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assignsamendment thereto, and neither they nor to take any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as action that the Seller Representative deems necessary or appropriate in connection with Sellers’ or the Seller Representative’s obligations under this Agreement.
(b) Any the Transaction Agreements and, at the Seller Representative’s request, each Seller shall evidence such power by execution of a separate certificate, affidavit, power of attorney or other Person, including instrument in such form and substance as may be reasonably requested by the Purchaser Seller Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions . Each Seller’s appointment of the Seller Representative as its attorney-in-fact shall be deemed to be a power coupled with an interest and shall survive the acts incompetency, bankruptcy or dissolution of Sellers giving such power. In the event of any conflict between this Section 1.6 and the Shareholders Agreement, the provisions of this Section 1.6 shall prevail. The following arrangements between Sellers and the Seller Representative are made in consideration of the Seller under any Representative’s acceptance of its appointment as the Seller Representative.
(d) In the event that the Seller Representative Documents. The Purchaser Representativebecomes unable to perform its responsibilities hereunder or resigns from such position, Sellers holding a majority of the Purchaser, Preferred Stock immediately prior to the Company Closing shall select another representative to fill such vacancy and each Indemnified Party and Indemnifying Party such substituted representative shall be entitled deemed to rely conclusively on be the Seller Representative for all purposes under the Transaction Agreements.
(e) All actions, decisions and instructions and decisions of the Seller Representative in accordance with the power and authority granted to it under the terms of this Agreement shall be conclusive and binding upon all Sellers and shall be deemed authorized, approved, ratified and confirmed by Sellers, having the same force and effect as to (i) the settlement of any indemnification claims by an Indemnified Party if performed pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunderdirect authorization of such Sellers, and neither the no Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party Seller Representative for any action taken taken, decision made or instruction given by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser RepresentativeSeller Representative hereby agrees that any exercise of the powers, authorities or rights granted to it by Sellers under the Purchaserterms of this Agreement shall be consistent with and in furtherance of the agreements contained in this Agreement, including the agreements of the Company Sellers set forth in Section 1.10.
(f) Sellers agree, severally and not jointly, in accordance with their respective Allocated Portion of the other Indemnified Parties shall not have any Liability Purchase Price, to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by indemnify the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellerfor, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against against, any and all Losses reasonably incurred without gross negligenceincurred, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance Seller Representative’s carrying out its duties hereunder or administration under any other Transaction Agreement, including costs and expenses of successfully defending the Seller Representative against any claim of liability with respect thereto; provided that Seller Representative shall not be entitled to indemnification hereunder from any Seller to the extent such Losses are the result of the Seller Representative’s duties under any Seller Representative Documentwillful breach (as defined in Section 8.2), including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder fraudulent acts or in connection herewith for any indirect, punitive, special or consequential damagesomissions. The Seller Representative shall not be liable may consult with counsel of its own choice and will have full and complete authorization and protection for any act done or omitted under any Seller Representative Document as the Seller Representative while acting action taken and suffered by it in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence opinion of such good faithcounsel. The Seller Representative shall be fully protected may deliver to the Sellers from time to time a statement of costs, expenses and other Losses of the Seller Representative subject to indemnification by the Sellers hereunder, divided among the Sellers in relying accordance with their Allocated Portions and, upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies receipt thereof, each Seller shall promptly (and no Person shall have in any Liability for relying on event within five (5) Business Days of receipt thereof) remit its allocated amount to the Seller Representative in the foregoing mannermanner indicated in such statement; provided that in no event shall any Seller’s aggregate indemnification obligation under this Section 1.6(f) exceed the aggregate proceeds that such Seller would have received had the transactions contemplated hereby been consummated on the terms and conditions set forth herein. In connection with the performance of its rights and obligations hereunderaddition, the Seller Representative shall have the right at any time and from time to time to select and engagemay, at its sole election, offset from any amounts received hereunder for distribution to the reasonable cost and expense Sellers the amount of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as any Losses for which the Seller Representative may reasonably deem necessary is entitled to indemnification pursuant to this Section 1.6(f) and use such amounts to satisfy all or appropriate from time to time. All any portion of such indemnification obligations of the indemnitiesSellers. The indemnity obligations of this Section 1.6(f) shall survive the resignation, immunities, releases and powers granted to replacement or removal of the Seller Representative under this Section 9.17 shall survive or the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes termination of this Agreement.
(g) 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 Seller shall mean and include the successors to such Seller’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(h) The Seller Representative, in its capacity as such, hereby represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself and its successors and assigns, each Seller hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxx Xx (in such capacity, in the capacity as the “Seller Representative, ”) as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative other Transaction Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such PersonSeller, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Seller Representative other Transaction Documents, including: (i) managingact for the Sellers with respect to all indemnification matters referred to in this Agreement, controlling, defending and settling including the right to compromise on behalf of an Indemnifying Party the Sellers any indemnification claims claim made by or against any of them under Article VIthe Sellers, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)if any; (ii) acting on behalf of such Person under act for the Escrow AgreementSellers with respect to all post-Closing matters; (iii) terminatingterminate, amending amend or waiving on behalf of such Person waive any provision of any Seller Representative Document (this Agreement; provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to all of the Seller Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable his or her sole discretion, deems necessary or advisable in the performance of its his or her duties as the Seller Representative and to rely on their advice and counsel; (viv) incurring incur and paying reasonable costs and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated herebyTransactions, and any other reasonable fees and expenses allocable or in any way relating to such transaction Transactions or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all sign any releases or any portion of the consideration provided other documents with respect to the Seller and dispute or remedy arising under this Agreement and to distribute or the same to the Sellerother Transaction Documents; and (viiix) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser deems necessary or any Indemnified Party appropriate in his or her sole discretion relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any Seller could do if personally present and acting. The Seller Representative xxxxxx accepts its his or her appointment and authorization as the Seller Representative under this Agreement.
(b) Any The appointment of the Seller Representative will be deemed coupled with an interest and will be irrevocable, and any other Person, including the Purchaser Representative, the Purchaser, the Fresh2, any Group Company and the any other Purchaser Indemnified Parties and the Indemnifying Parties Parties, may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Seller Representative Documentsother Transaction Document. The Each Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any claims for indemnification claims by an a Purchaser Indemnified Party pursuant to Article VISection 7 hereof, (ii) any payment instructions provided by the Seller Representative Representative, or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Indemnified Party shall have any cause of action against the any Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them a Purchaser Indemnified Party in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the any Seller for any Losses loss or damage that the any Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the such Seller Representative’s duties under this Agreement, other than Losses loss or damage arising from the bad faithfraud, gross negligence or willful misconduct by the Seller Representative in the performance of its the Seller Representative’s duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall indemnify, defend severally agree to indemnify and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the fraud, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall will not be liable entitled to any fee, commission or other compensation for any act done the performance of his or omitted under any Seller Representative Document her services hereunder, but will be entitled to the payment from Sellers of all his or her expenses incurred as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyRepresentative.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its his or her responsibilities as representative and agent of the SellerXxxxxxx, then Seller Sellers shall, within ten (10) days after such death, death or disability, dissolution, resignation or other event, appoint a successor Seller Representative agent and, promptly thereafter (as determined by the board of directors of the Seller, but in any event within two (2) Business Days after such appointment) ), shall notify the Purchaser Representative and the Purchaser Fresh2 in writing of the identity of such successor. Any such successor shall be appointed by the written consent of the Sellers holding a majority of the Pro Rata Share held by all Sellers, and any successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
(e) All notices or other communications required to be made or delivered by the Purchaser or Fresh2 to a Seller shall be made to the Seller Representative for the benefit of such Seller, and any notices so made shall discharge in full all notice requirements of the Purchaser to such Seller with respect thereto. All notices or other communications required to be made or delivered by a Seller shall be made by the Seller Representative (except for a notice under Section 8.3(d) of the replacement of the Seller Representative).
Appears in 1 contract
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, each Seller, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Bing Zhang in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”)party, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents to which the Seller Representative Documentsis a party, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party Indemnitor any indemnification claims against any of them under Article VIVII, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)7.4; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) making on behalf of such Person any determinations and taking all actions on their behalf relating to the determination of the achievement of the Earnout Targets or the Alternative Earnout Target and the delivery of the Earnout Shares under Section 1.4, and in each case any disputes with respect thereto; (iv) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Seller Representative Document is a party (provided, that any such action, if material to the rights and obligations of the Seller Sellers in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Sellers unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under this Agreement or any Ancillary Documents to which the Seller Representative Documentis a party; (vvi) 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; (vivii) 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 indemnification claim, whether incurred prior or subsequent to Closing; (viiviii) receiving all or any portion of the consideration provided to the Seller Sellers under this Agreement and to distribute the same to the SellerSellers in accordance with their Pro Rata Shares; and (viiiix) otherwise enforcing the rights and obligations of any such Persons under any this Agreement and the Ancillary Documents to which the Seller Representative Documentis a party, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party other Indemnitee relating to the defense or settlement of any indemnification claims for which an Indemnifying Party Indemnitor may be required to indemnify an Indemnified Party Indemnitee pursuant to Article VIVII, shall be binding upon the Seller Sellers and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 11.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company Parties, the Indemnitees and the Indemnified Parties and the Indemnifying Parties Indemnitors may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under Sellers hereunder or any Ancillary Document to which the Seller Representative Documentsis a party. The Purchaser Representative, the Purchaser, the Company Parties and each Indemnified Party Indemnitee and Indemnifying Party Indemnitor shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party Indemnitee pursuant to Article VIVII, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the no Seller nor any Indemnifying Party other Indemnitor shall have any cause of action against the Purchaser Representative, the Purchaser, the any Company Party or any other Indemnified Party Indemnitee for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company Parties and the other Indemnified Parties Indemnitees shall not have any Liability to the any Seller or any Indemnifying Party other Indemnitor for any allocation or distribution to among the Seller Sellers by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Seller under this Agreement or any Ancillary Document to which the Seller under any Seller Representative Document is a party shall be made to the Seller Representative for the benefit of the such Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the such Seller with respect thereto. All notices or other communications required to be made or delivered by the a Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d11.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Sellers 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 SellerSellers, but the Seller Representative will not be responsible to the Seller Sellers for any Losses that the any Seller or any Indemnifying Party other Indemnitor may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From The Sellers do hereby jointly and after the Closing, the Seller shall severally agree to indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part suffered as a result of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration performance of the Seller Representative’s duties under this Agreement, except for any Seller Representative Documentsuch liability arising out of the bad faith, including the reasonable fees and expenses gross negligence or willful misconduct of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable to the Sellers hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under this Agreement or any Seller Representative Ancillary Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time, but the Seller Representative will not be entitled to any fee, commission or other compensation for the performance of its services hereunder. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 11.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerSellers, then Seller the Sellers shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerSellers holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (TKK SYMPHONY ACQUISITION Corp)
Seller Representative. (a) Seller GroupEach of the Sellers hereby appoints SVCMC to act, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, SVCMC hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representativeagrees to so act, as the true and lawful agent Sellers’ representative and attorney-in-fact of for the purposes and with the powers and exclusive authority hereinafter set forth in this Section 13.2 (SVCMC, in such Persons with full powers of substitution capacity, the “Seller Representative”), which shall include the sole and exclusive power and authority:
(i) to act execute and deliver in the name, place and stead on behalf, of thereof with respect each Seller (A) amendments or modifications to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has waivers of any rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors Sellers contained herein as the Seller Representative, in its reasonable sole discretion, deems necessary determines to be desirable and (B) any and all agreements, documents, certificates or advisable in other instruments permitted or required to be delivered by the performance of its duties Sellers pursuant hereto as the Seller Representative Representative, in its sole discretion, may deem necessary or desirable;
(ii) to collect and receive, directly or indirectly, all amounts that may be distributed to the Sellers pursuant hereto and to rely on their advice disburse and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute pay the same to the Seller; Sellers in accordance herewith and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between in this respect the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on collect the instructions and decisions of the Seller Representative as to (i) the settlement full amount of any indemnification claims by an Indemnified Party pursuant payment due to Article VI, (ii) the Sellers hereunder and conversely any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for shall validly discharge the benefit debtor to any payment hereunder;
(iii) to enforce and protect the rights and interests of the SellerSellers, in the name, and any notices so made shall discharge in full all notice requirements on behalf, of the Sellers, arising out of or under or in any manner relating to this Agreement, and each other parties hereto agreement, document, instrument or thereto certificate referred to herein or therein or the Seller with respect thereto. All notices transactions provided for herein or other communications required therein and, in connection therewith, to be made (A) assert any claim or delivered by institute any action, proceeding or investigation in the Seller shall be made by name of the Seller Representative (except for a notice under Section 9.17(d) or, if the Seller Representative so elects, in the names of one or more of the replacement Sellers; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Purchaser or any other Person or by any Governmental Body against the Seller Representative and/or any of the Sellers, and receive process on behalf of any or all of the Sellers in any such claim, action, proceeding or investigation and compromise or settle such claim, action, proceeding or investigation on such terms as the Seller Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Seller Representative may deem advisable or necessary; (D) settle or compromise any claims asserted hereunder; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation in the name of the Seller Representative).
(c) The Seller Representative will act for the Seller on all of the matters set forth in this Agreement in the manner or, if the Seller Representative believes to be so elects, in the best interest names of one or more of the SellerSellers;
(iv) to enforce payment of amounts due to the Sellers hereunder, but in each case on behalf of the Sellers and each of them, in the name of the Seller Representative will not be responsible to or, if the Seller for Representative so elects, in the names of one or more of the Sellers;
(v) to refrain from enforcing any Losses right of the Sellers or any of them and/or of the Seller Representative arising out of or under or in any manner relating to this Agreement or any other agreement, instrument or document in connection with the foregoing, it being understood that the Seller or Representative shall not have any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreementliability for refraining from enforcing any such right; provided, other than Losses arising from the bad faithhowever, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct that no such failure to act on the part of the Seller Representative (in its capacity as such) and arising out shall be deemed a waiver of any such right or in connection with the acceptance or administration of interest by the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained unless such waiver is in a writing signed by the Seller Representative. In no event ; and
(vi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, share powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Seller Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith or therewith.
(b) From and after the date hereof, the Sellers agree that Purchaser and its Affiliates shall be entitled to rely upon the power of attorney granted in favor of the Seller Representative pursuant to this Section 13.2 and to deal exclusively with the Seller Representative in such capacity respect of all notices, disputes and other matters relating to this Agreement or the Sellers’ rights or obligations hereunder. Purchaser and its Affiliates shall be liable hereunder entitled to rely upon any statements or in connection herewith for any indirect, punitive, special or consequential damagesactions taken by the Seller Representative made on behalf of the Sellers hereunder. The Seller Representative agrees that it will not take any action which it otherwise is authorized hereunder to take that would materially adversely affect a Seller in a manner that is disproportionate to that in which the Sellers as a group would be affected.
(c) The grant of authority provided for in this Section 13.2: (i) is coupled with an interest and shall not be liable for irrevocable and survive the bankruptcy, liquidation or dissolution of any act done or omitted under any Seller Representative Document as Seller; (ii) may be exercised by the Seller Representative while acting in good faith and without willful misconduct or gross negligenceeither by signing separately as representative of each of the Sellers or, and any act done or omitted pursuant to after listing all of the advice Sellers executing an instrument, by the signature of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative acting in such capacity for all of them; and (iii) shall survive the foregoing manner. delivery of an assignment by a Seller of any of it rights or obligations hereunder.
(d) In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerSellers (from amounts otherwise to be distributed to the Sellers), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate desirable from time to time. All of The Seller Representative shall be entitled to withhold and retain from the indemnities, immunities, releases and powers granted funds otherwise distributable to the Sellers such amount or amounts as shall be sufficient to pay all expenses which are required to be paid or borne by the Sellers pursuant hereto or incurred by the Seller Representative in connection with the Seller Representative’s performance of its obligations under this Section 9.17 13.2. The Seller Representative shall survive not be entitled to any fee, commission or other compensation for the Closing performance of its services hereunder, but shall be entitled to the payment of all costs, fees and continue indefinitelyexpenses incurred by it pursuant to this Section 13.2.
(de) If In dealing with this Agreement and any instruments, agreements or documents relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Seller Representative hereunder, (i) the Seller Representative assumes and shall incur no responsibility whatsoever (whether to any Seller or any other Person (other than Purchaser and its Affiliates)) by reason of any error in judgment or other act or omission performed or omitted in connection herewith or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct or gross negligence, and (ii) the Seller Representative shall diebe entitled to rely on the advice of counsel, become disabledpublic accountants or other independent experts experienced in the matter at issue, dissolve, resign and any error in judgment or otherwise be unable other act or unwilling to fulfill its responsibilities as representative and agent omission of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative pursuant to such advice shall in no event subject the Seller Representative to liability to any Seller or any other Person (as determined by the board of directors other than Purchaser and its Affiliates). Each Seller shall severally, based on their pro rata allocation of the Sellerproceeds hereunder, within two (2) Business Days after such appointment) notify hold harmless and indemnify the Purchaser Seller Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.against all
Appears in 1 contract
Samples: Asset Purchase Agreement
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, Gxxx Xxxxx in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Stockholder Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying no other Party shall have any cause of action against the Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller any Company Stockholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.14 shall survive the Closing and the resignation or removal of the Seller Representative and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Stockholder Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser Company in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Innovative International Acquisition Corp.)
Seller Representative. (a) Silver Oak Capital, LLC is hereby constituted and appointed as Seller GroupRepresentative by each Seller, and Seller Representative hereby accepts such appointment. Each Seller agrees, by delivery virtue of a Letter its adoption of Transmittalthis Agreement and pursuant to the Company LLC Agreement, on behalf of itself and that Seller Representative is hereby appointed as his, her or its successors and assignsrepresentative, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers power of substitution to act in the name, place and stead of thereof with respect to the performance do any and all things and execute any and all documents on behalf of such Person Seller that may be necessary, convenient or appropriate to facilitate the consummation of this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby (including giving or agreeing to, on behalf of all or any of Sellers, any and all consents, waivers, amendments or modifications deemed by Seller Representative, in its sole and absolute discretion, to be necessary or appropriate under the terms and provisions of this Agreement and the Ancillary Transaction Documents), the administration of and carrying out of the terms of this Agreement and the Transaction Documents and to which act on his, her or its behalf for the specific purposes set forth in this Section 6.03. Seller Representative is a party shall on behalf of Sellers (1) give and receive notices and communications to or otherwise has rights from Purchaser (on behalf of itself or any other Seller) with copies to each Seller’s and/or Purchaser’s Representatives relating to this Agreement or any other agreement, instrument or document contemplated hereby or executed in such capacity connection herewith; (together with 2) negotiate and compromise claims and disputes arising under, or relating to, this AgreementAgreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the “avoidance of doubt, any adjustment to the Purchase Price); (3) execute and deliver any amendment or waiver to this Agreement and the Transaction Documents and the other agreements, instruments, and documents, including all instruments to assign and transfer the Interests to Purchaser, contemplated hereby or executed in connection herewith; provided, that the execution of any amendment to this Agreement by Seller Representative Documents”), as must be approved by a majority in interest of the same may be from time to time amended, and to do Sellers; (4) exercise or refrain from doing all such further acts exercising any remedies available to Sellers under the Agreement and thingsthe other agreements, instruments, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary contemplated hereby or appropriate executed in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)herewith; (ii5) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person sign any releases or other documents with respect to any such dispute or remedy arising under any Seller Representative Documentremedy; (v6) employing waive any condition contained in this Agreement or other agreements, instruments, and obtaining the advice of legal documents contemplated hereby or executed in connection herewith; (7) retain such counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, Representative reasonably deems necessary or advisable to assist it in the performance of its duties as the Seller Representative hereunder and to rely on their advice and counsel; (vi) incurring and paying reasonable pay fees, costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Sellerthereof; and (viii) otherwise enforcing 8) take all actions necessary or appropriate in the rights sole discretion of Seller Representative for the accomplishment of the foregoing or that Sellers could take if present and obligations acting unanimously, in each case without having to seek or obtain the consent of any such Persons Person under any circumstance; provided that Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder shall have no obligation to act on behalf of such PersonSellers except as provided in this Agreement. All decisions and actions by the Seller Representative, including any agreement between the This appointment of Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and is coupled with an interestinterest and shall not be revocable by any Seller in any manner or for any reason. The This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law. Seller Representative xxxxxx accepts shall be the sole and exclusive means of asserting or addressing any of the above, and no Seller shall have any right to act on its appointment and authorization as the own behalf with respect to any such matters, other than any claim or dispute against Seller Representative under this AgreementRepresentative.
(b) Any other Personnotice or communication given or received by, including the Purchaser Representativeand any decision, the Purchaseraction, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely relyfailure to act within a designated period of time, without inquiryagreement, upon any actions of the consent, settlement, resolution or instruction of, Seller Representative as that is within the acts scope of the Seller Representative’s authority under any Seller Representative DocumentsSection 6.03(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Sellers and shall be final, binding and conclusive upon each of them. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and decisions of the Seller Representative as every such Seller. Purchaser is unconditionally and irrevocably relieved from any liability to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party person for any action taken acts done by it in accordance with any such notice, communication, decision, action, failure to act within a designated period of them in reliance upon the instructions time, agreement, consent, settlement, resolution or decisions instruction of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The agency of Seller Representative will act for may not be changed, and the Seller on all of the matters set forth in this Agreement in the manner the Person serving as Seller Representative believes may not be replaced without (i) the prior written consent of each Seller and (ii) at least ten (10) days’ prior written notice to be in the best interest of the Seller, but the Purchaser.
(d) Neither Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after Affiliates nor its or their respective direct or indirect officers, directors, partners, managers, employees, agents or representatives (the Closing, the “Representative Parties”) shall be liable to any Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out Seller Representative for any liability of a Seller or for any error of judgment, or any act done or step taken or omitted by it that it believed to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement and the acceptance or administration Transaction Documents. Sellers shall severally, but not jointly, pro rata in accordance with their respective proceeds from the sale of the Seller Representative’s duties under any Interests, indemnify and hold harmless, Seller Representative Documentfrom any and all losses, liabilities and expenses (including the reasonable fees and expenses of any legal counsel retained by the counsel) arising out of or related to Seller Representative. In no event ’s service as Seller Representative.
(e) Each Seller shall bear its share of the Seller Representative costs incurred in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance execution and delivery of its rights this Agreement and obligations hereunder, the Seller Representative shall have Transaction Documents and the right at any time and from time to time to select and engage, at the reasonable cost and expense consummation of the Seller, attorneys, accountants, investment bankers, advisors, consultants transaction contemplated hereby and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted thereby to the Seller Representative under this Section 9.17 shall survive extent such costs are incurred for the Closing benefit of all Sellers and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or are not otherwise required to be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined paid by the board of directors of Company or the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this AgreementPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Talen Energy Supply, LLC)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxSxxxxx Xxxxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.15; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 10.14 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto Parties or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d10.14(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 10.14 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Pono Capital Corp)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxxxxxx Xxxxxxxxx, in the capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (ivii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viii) 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; (viiv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viiv) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivi) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hereby accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable and documented out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AMCI Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Shareholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxXxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the Post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.12; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Shareholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Shareholders unless otherwise agreed by each Seller Stockholder Company Shareholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closingtransaction; (viivi) receiving all or any portion of the consideration provided to the Seller Company Shareholders under this Agreement and to distribute the same to the SellerCompany Shareholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, Representative and the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VIPurchaser, shall be binding upon the Seller each Company Shareholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.15 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, Purchaser and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Shareholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, Purchaser and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iiiii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Shareholder shall have any cause of action against the Purchaser Representative, the Purchaser, Purchaser or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, Purchaser and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Shareholder for any allocation or distribution to among the Seller Company Shareholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Shareholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Shareholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Shareholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.15(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Shareholders 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 SellerCompany Shareholders, but the Seller Representative will not be responsible to the Seller Company Shareholders for any Losses that the Seller any Company Shareholder or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Shareholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.15 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Shareholders, then Seller the Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Shareholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Genesis Growth Tech Acquisition Corp.)
Seller Representative. (a) Seller GroupEach Company Stockholder, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx XxxxxxxxCxxxxxxxxxx Xxxxx, in the his capacity as the Seller Representative, as the true and lawful agent and attorney-in-fact of such Persons with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending controlling and settling on behalf of an Indemnifying Party making any indemnification claims against any of them determinations with respect to the post-Closing Merger Consideration adjustments under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a)1.12; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller Company Stockholders in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller all Company Stockholders unless otherwise agreed by each Seller Company Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iviii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (viv) 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; (viv) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (viivi) receiving all or any portion of the consideration provided to the Seller Company Stockholders under this Agreement and to distribute the same to the SellerCompany Stockholders in accordance with their Pro Rata Share; and (viiivii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, or the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller each Company Stockholder and its their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx hxxxxx accepts its appointment and authorization as the Seller Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, the Purchaser, and the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser, and the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, or the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, and the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party Company Stockholder for any allocation or distribution to among the Seller Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellersuch Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by the Seller a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 9.17(d9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller Company Stockholders 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 SellerCompany Stockholders, but the Seller Representative will not be responsible to the Seller Company Stockholders for any Losses that the Seller or any Indemnifying Party Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the SellerCompany Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the SellerCompany Stockholders, then Seller the Company Stockholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors vote or written consent of the SellerCompany Stockholders holding in the aggregate a Pro Rata Share in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Deep Medicine Acquisition Corp.)
Seller Representative. (a) Seller Group, by By the execution and delivery of a Letter of Transmittalthis Agreement, on behalf of itself Company and its successors and assigns, each Seller hereby irrevocably constitutes constitute and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, appoint Xx. Xxxxxxxxx as the true and lawful agent and attorney-in-fact (the “Seller Representative”) of such Persons Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Person Seller under the terms and provisions of this Agreement and the Ancillary Documents to which the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Personthe Sellers, if any, as the Seller Representative will shall deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documentsthis Agreement, including: :
(i) managingto agree upon or compromise any matter related to the calculation of any adjustments, controlling, defending and settling under this Agreement;
(ii) to direct the distribution of the Purchase Price;
(iii) to execute the Escrow Agreement on behalf of an Indemnifying Party any the Sellers;
(iv) to act for the Sellers with respect to all indemnification claims against any of them under Article VImatters referred to in this Agreement, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting the right to compromise on behalf of such Person the Sellers any indemnification claim made by or against the Sellers, if any;
(v) to act for the Sellers 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 under the Escrow Agreement; ;
(iiivi) terminatingafter the Closing, amending to terminate, amend, or waiving on behalf of such Person waive any provision of any Seller Representative Document (provided, this Agreement; provided that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will action shall be taken in the same manner with respect to all the Seller Sellers unless otherwise agreed by each Seller Stockholder of the Sellers who is subject to any disparate treatment of a potentially material and adverse nature); ;
(ivvii) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing employ and obtaining obtain the advice of legal counsel, accountants and other professional advisors as the Seller Representative, in its reasonable discretion, Representative reasonably deems necessary or advisable in the performance of its his duties as the Seller Representative and to rely on their advice and counsel; ;
(viviii) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any retain a portion of the consideration provided to Purchase Price as a reserve against the payment of expenses incurred in his capacity as the Seller Representative;
(ix) to sign any releases or other documents with respect to and dispute or remedy arising under this Agreement and the Transaction Documents; and
(x) to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of do or refrain from doing any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder further act or thereunder deed on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between Sellers which the Seller Representative and the Purchaser Representative, the Purchaser reasonably deems necessary or any Indemnified Party appropriate relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions subject matter of this Section 9.17 are irrevocable Agreement as fully and coupled with an interestcompletely as any of the Sellers could do if personally present and acting. The Without limiting the foregoing, after the Closing Seller Representative xxxxxx accepts its appointment and authorization as shall take the Seller Representative actions to be taken by the Sellers under this AgreementSection 12 hereof.
(b) Any The appointment of the Seller Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties Person may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of Sellers hereunder appointing the Seller Representative as in all matters referred to (i) the settlement in this Agreement. Each of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by Company and Sellers appointing the Seller Representative or (iii) any other actions required or permitted to be taken by hereby ratifies and confirms all that the Seller Representative hereunder, and neither the shall do or cause to be done by virtue of such Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions ’s appointment as Seller Representative of the Seller RepresentativeSellers. The Purchaser Representative, Seller Representative shall act for the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by Sellers appointing the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, Sellers but the Seller Representative will shall not be responsible to the Seller Company nor any of the Sellers for any Losses loss or damage that the Seller Company or any Indemnifying Party of the Sellers may suffer by reason of the performance by the Seller Representative of such Seller Representative’s duties under this Agreement and any other agreement appointing such Seller Representative, other than loss or damage arising from fraud, gross negligence or willful misconduct in the performance of such Seller Representative’s duties under this Agreement.
(c) Each of the Sellers appointing the Seller Representative hereunder hereby expressly acknowledges and agrees that any Person shall be entitled to rely on any and all action taken by the Seller Representative under this Agreement without liability to, or obligation to inquire of, any of the Sellers. If the Seller Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Seller Representative shall be the Person appointed by the Sellers that held a majority of the Company Equity outstanding immediately prior to the 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 the Effective Time, held more than five percent (5%) of the outstanding Company Equity shall have the right to petition a court of competent jurisdiction for appointment of a successor Seller Representative. The Sellers appointing the Seller Representative do hereby severally agree to indemnify and hold the Seller Representative harmless, ratably in accordance with their Common Pro Rata Percentages, from and against any and all Loss (including attorneys’ fees) reasonably incurred or suffered as a result of the performance of such Seller Representative’s duties under this Agreement, other than Losses except for any such liability arising from out of the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
Appears in 1 contract
Seller Representative. (a) Each Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity as the Seller Representative, Representative as the true and lawful agent and attorney-in-fact for such Seller to have absolute authority, for and on behalf of such Persons with full powers of substitution to act in the nameSellers, place and stead of thereof including with respect to the performance following: (i) to give and receive notices and communications, to object to payments, to agree to, negotiate, enter into settlements and compromises of, and demand suit or arbitration or other procedures and comply with orders of courts and awards of arbitrators with respect to claims, and to otherwise act on behalf of such Person the Sellers following the Closing with respect to any matter involving the Sellers’ rights and obligations under the terms and provisions of this Agreement and the Ancillary Documents other Transaction Documents, and (ii) to take all actions necessary or appropriate in the judgment of the Seller Representative for the accomplishment of the foregoing.
(b) The Seller Representative will have the right to (i) take any action contemplated to be taken by the Sellers under this Agreement or any other Transaction Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Transaction Document, including with respect to any indemnification claim pursuant to Article IX; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, or any other Transaction Document.
(c) An amount equal to $500,000 (the “Representative Holdback Amount”) shall be held by the Seller Representative as a fund from which the Seller Representative is a party shall, in its sole discretion, (i) reimburse itself for or otherwise has rights pay directly any out-of-pocket fees, expenses or costs it incurs in such capacity performing its duties and obligations under this Agreement and the other Transaction Documents, including out-of-pocket fees and expenses incurred pursuant to the procedures and provisions set forth herein and legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Transaction Document and/or (together with ii) satisfy any other obligation or liability of any Seller under this AgreementAgreement or any Transaction Document as set forth herein (provided that, for the avoidance of doubt, the “Seller Representative Documents”), as the same may shall be from time to time amended, and entitled to do so in its sole discretion and shall have no obligation to satisfy any other obligation or refrain liability of any Seller in priority to the items in clause (i) above or at all). Each Seller acknowledges that the Seller Representative will not be liable for any loss of principal of the Representative Holdback Amount except to the extent finally determined by a court of competent jurisdiction (not subject to further appeal) to have resulted directly and exclusively from doing all the Seller Representative’s fraud or willful misconduct. At such further acts and things, and to execute all such documents on behalf of such Person, if any, time as the Seller Representative will deem necessary or deems appropriate in connection with any of the transactions contemplated under its sole discretion, the Seller Representative Documentsshall pay to each Cash Seller his, including: (i) managing, controlling, defending and settling on behalf her or its pro rata share of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (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 costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion of the consideration provided to the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller remaining Representative Document, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person. All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party may be required to indemnify an Indemnified Party pursuant to Article VI, shall be binding upon the Seller and its Holdback Amount in accordance with their respective successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Seller Representative xxxxxx accepts its appointment and authorization as the Seller Representative under this AgreementClosing Percentages.
(bd) Any other Person, including the Purchaser Representative, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon Notwithstanding any actions of the Seller Representative as the acts of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability foregoing to the Seller or any Indemnifying Party for any allocation or distribution to the Seller by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Sellercontrary, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at power or authority to amend, modify, waive or change any time and from time to time to select and engageprovision of this Agreement or any Transaction Document or otherwise take any action (including any settlement, at waiver or resolution of any provision herein) that requires the reasonable cost and expense consent of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All Sellers holding not less than 75% of the indemnities, immunities, releases and powers granted to Company Units without the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitely.
(d) If the Seller Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent prior approval of the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined by the board of directors Sellers holding not less than 75% of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this AgreementCompany Units.
Appears in 1 contract
Samples: Merger Agreement (Shenandoah Telecommunications Co/Va/)
Seller Representative. (a) The SGA Parties hereby (i) irrevocably nominate, constitute and appoint the Seller Group, by delivery of a Letter of Transmittal, on behalf of itself and its successors and assigns, hereby irrevocably constitutes and appoints Xxxx Xxxxxxxx, in the capacity Representative as the Seller Representative, as the agent and true and lawful agent and attorney-in-fact of such Persons the SGA Parties in connection with the matters set forth in this Section 2.07, with full powers power of substitution substitution, to act in the name, name place and stead of thereof with respect to the performance on behalf Sellers for purposes of such Person under the terms executing, delivering, acknowledging, certifying, filing, modifying, or waiving any and provisions of this Agreement all documents and the Ancillary Documents to which taking any actions that the Seller Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Seller Representative Documents”), as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Person, if any, as the Seller Representative will deem necessary or appropriate in connection with any of the transactions contemplated under the Seller Representative Documents, including: (i) managing, controlling, defending and settling on behalf of an Indemnifying Party any indemnification claims against any of them under Article VI, including controlling, defending, managing, settling and participating in any Third Party Claim in accordance with Section (a); (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of any Seller Representative Document (provided, that any such action, if material to the rights and obligations of the Seller in the reasonable judgment of the Seller Representative, will be taken in the same manner with respect to the Seller unless otherwise agreed by each Seller Stockholder who is subject to any disparate treatment of a potentially material and adverse nature); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Seller Representative Document; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Seller Representativemay, in its reasonable discretion, deems necessary determine to be necessary, desirable or advisable appropriate in the connection with or arising out of this Section 2.07 and its performance of its duties as under this Section 2.07 and (ii) grant the Seller Representative such powers and authority as are necessary to rely carry out the functions assigned to it under this Section 2.07 (each such functions, an “Authorized Action”). By its execution hereof, the Seller Representative agrees to serve in such capacity; provided, however, that the Seller Representative shall have no obligation to act on their advice and counsel; (vi) incurring and paying reasonable costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; (vii) receiving all or any portion behalf of the consideration Sellers except as expressly provided herein. A SGA Party will be deemed a party or a signatory to any document, instrument, certificate, or agreement that the Seller under this Agreement and to distribute the same to the Seller; and (viii) otherwise enforcing the rights and obligations of any such Persons under any Seller Representative Document, including giving and receiving all notices and communications hereunder or thereunder signs on behalf of such PersonSGA Party in accordance with this Section 2.07. Each of the SGA Parties acknowledges and agrees that actions of the Seller Representative under this Agreement shall require the vote or consent (as applicable) of each Person constituting the Seller Representative.
(b) Without limiting the generality of Section 2.07(a), the Seller Representative shall have the full power, authority, and discretion to:
(i) give and receive all notices required or permitted to be given pursuant to or in connection with Section 2.07, Section 6.01, Section 6.02 or Article VIII;
(ii) take or refrain from taking any actions on behalf of the Sellers (whether by negotiation, settlement, litigation or otherwise) to contest, resolve, settle or consent to liability with respect to any indemnification claim pursuant to Article VIII or Section 6.02;
(iii) take the actions set forth in Section 6.02
(iv) assist the SGA Parties in performing their obligations under Section 5.05;
(v) perform all of the Seller Representative’s duties with respect to the determinations (A) of the Closing Net Working Capital pursuant to Section 2.05 and (B) of the True Up Amount pursuant to Section 2.06; and
(vi) take all actions necessary or appropriate for the accomplishment of the foregoing and in each case, execute and deliver any documents, instruments, certificates, or agreements that may be reasonably necessary, appropriate, or advisable in connection therewith.
(c) The Seller Representative shall not have the authority to:
(i) amend, supplement or waive this Agreement on behalf of any SGA Party; or
(ii) contest, resolve, settle or consent to liability on behalf of any Seller in excess of the limitations set forth in Section 8.04 or other than in accordance with each Seller’s Purchase Price Percentage.
(d) All decisions and actions by the Seller Representative, including any agreement between the Seller Representative and the Purchaser Representative, the Purchaser or any Indemnified Party relating to the defense or settlement of any claims for which an Indemnifying Party the Sellers may be required to indemnify an Indemnified Party indemnify, or pay to, Purchaser pursuant to Article VIVIII or Section 6.02, shall be binding upon all of the Seller and its respective successors and assignsSellers, and neither they nor any other Party no Seller shall have the right to object, dissent, protest protest, or otherwise contest the same. .
(e) The provisions of this Section 9.17 are irrevocable and coupled with an interest. The Purchaser agrees that the Seller Representative xxxxxx accepts Representative, acting in its appointment and authorization capacity as the Seller Representative under this Agreement.
(b) Any other PersonRepresentative, including shall have no liability to the Purchaser Representativefor any Authorized Action, the Purchaser, the Company and the Indemnified Parties and the Indemnifying Parties may conclusively and absolutely rely, without inquiry, upon any actions of except that the Seller Representative as shall not be relieved of liability to the acts extent that such Authorized Action is found by a final order of the Seller under any Seller Representative Documents. The Purchaser Representative, the Purchaser, the Company and each Indemnified Party and Indemnifying Party shall be entitled a court of competent jurisdiction to rely conclusively on the instructions and decisions of the Seller Representative as to (i) the settlement of any indemnification claims have constituted fraud or gross negligence by an Indemnified Party pursuant to Article VI, (ii) any payment instructions provided by the Seller Representative or (iii) any other actions required or permitted to be taken by the Seller Representative hereunder, and neither the Seller nor any Indemnifying Party shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Seller Representative, acting in its capacity as the PurchaserSeller Representative, the Company and the other Indemnified Parties shall not have any Liability liability to the Seller Purchaser for any breach under this Agreement or any Indemnifying Party for Ancillary Agreement by any allocation or distribution Seller.
(f) To the maximum extent permitted by applicable Law, each Seller (on a several and not joint basis and in proportion to the Seller by each Seller’s Purchase Price Percentage), hereby agrees to indemnify and hold harmless the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to the Seller under any Seller Representative Document shall be made to the Seller Representative for the benefit of the Seller, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to the Seller with respect thereto. All notices or other communications required to be made or delivered by the Seller shall be made by the Seller Representative (except for a notice under Section 9.17(d) of the replacement of the Seller Representative).
(c) The Seller Representative will act for the Seller 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 Seller, but the Seller Representative will not be responsible to the Seller for any Losses that the Seller or any Indemnifying Party may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than Losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Seller shall indemnify, defend and hold the Seller Representative harmless from and against any and all Losses reasonably resulting from, arising out of, or incurred without gross negligence, bad faith or willful misconduct on the part of by the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance any action, suit or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall proceeding to which the Seller Representative is made a party by reason of the fact it is or was acting as the Seller Representative of any Seller pursuant to the terms of this Agreement. The Seller Representative shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such capacity be liable hereunder or Seller. The Seller Representative shall not have a fiduciary relationship in connection herewith for any indirect, punitive, special or consequential damagesrespect of the SGA Companies. The Seller Representative shall not be liable to any Seller for any act done action taken or omitted by it or any agent employed by it hereunder or under any Seller Representative Document as the Seller Representative while acting other document entered into in good faith and without willful misconduct or gross negligenceconnection herewith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document except that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at not be relieved of any time and from time to time to select and engage, at the reasonable cost and expense of the Seller, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary liability imposed by law for fraud or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 9.17 shall survive the Closing and continue indefinitelyfor gross negligence.
(dg) If The Sellers each agree, in addition to the Seller Representative foregoing, that:
(i) The provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest, and shall die, become disabled, dissolve, resign be enforceable notwithstanding any rights or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of remedies that any SGA Party may have in connection with the Seller, then Seller shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Seller Representative (as determined transactions contemplated by the board of directors of the Seller, within two (2) Business Days after such appointment) notify the Purchaser Representative and the Purchaser in writing of the identity of such successor. Any such successor so appointed shall become the “Seller Representative” for purposes of this Agreement.
(ii) The provisions of this Section 2.07 shall be binding upon the successors and assigns, heirs, legatees, personal representatives of each SGA Party, and any references in this Agreement to a SGA Party shall mean and include the successors to the rights of the SGA Party hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, or otherwise.
Appears in 1 contract
Samples: Securities Purchase Agreement (Virtus Investment Partners, Inc.)
